WATER LAW AND
ECONOMICS
THE CLEAN WATER ACT
TIMOTHY J. RYAN
Ohio University
Athens, Ohio
U.S. water legislation dates back to the late nineteenth
century, when the 49th Congress enacted the Rivers
and Harbors Act of 1886, which ultimately became the
Rivers and Harbors Act of 1899. This law was designed
to minimize obstructions in any navigable waterway in
the United States, and it prohibited the deposit of any
material on banks of navigable waters that would lead to
the impeding of navigation. The law basically allowed
for fines of $500 to $2,500 as well as imprisonment.
Recognizing the continuing public health threat posed
by water contamination, in 1948 Congress enacted the
Federal Water Pollution Control Act (FWPCA) in order to
‘‘enhance the quality and value of our water resources
and to establish a national policy for the prevention,
control and abatement of water pollution.’’ The original
FWPCA aimed to establish programs that would improve
sanitary conditions of both surface and groundwater while
minimizing or eliminating the pollution of interstate
waterways and tributaries. These goals thus differed from
the original Rivers and Harbors Act’s goals by adding
pollution regulation in hopes of improving the public’s
water supply, habitats of aquatic life, and water for
recreational, agricultural, and industrial uses. FWPCA
and several subsequent amendments set out the basic
legal authority for federal regulation of water quality to
the present day.
The original FWPCA, or simply the ‘‘Act,’’ was
subjected to incremental but limited improvements that
eventually resulted in a somewhat disparate collection
of water-related requirements. Eleven reorganizations
and restructurings of federal agency responsibilities
compounded the difficulty of effectively implementing
the law. For this reason, the 1972 amendments to the
FWPCA restructured the authority for water pollution
control and consolidated authority in the Administrator
of the then newly formed United States Environmental
Protection Agency (EPA). Formed in 1970 by President
Nixon in response to the growing public demand for
an overall healthier environment, the EPA was the first
federal authority to implement pollution control programs
for industry. Growing public awareness and concern for
controlling water pollution throughout the mid-1970s led
to amendments of the Act in 1977. As amended, this law
became commonly known as the Clean Water Act (CWA).
The CWA, and it’s associated rules found in Title
33 of the Code of Federal Regulations, established the
basic priorities and structure for regulating pollution
releases into the waters of the United States. The
Act’s major subchapters include six Titles: (I) Research
595
and Related Programs, (II) Grants for Construction of
Treatment Works, (III) Standards and Enforcement, (IV)
Permits and Licenses, (V) General Provisions, and (VI)
State Water Pollution Control Revolving Funds. The Act
continued requirements to set water quality standards
for all contaminants in surface waters and made it
unlawful to discharge any pollutant from a single, or
point, source into navigable waters, unless a permit was
obtained under the Act. It also funded the construction
of sewage treatment plants under the construction grants
program and recognized the need for planning to address
the critical problems posed by diffuse, or nonpoint, sources
of pollution.
NATIONAL POLLUTANT DISCHARGE ELIMINATION
SYSTEM
One of the most significant features of the Clean Water
Act is the creation of a National Pollutant Discharge
Elimination System (NPDES) under Section 402 of
Title IV, Permits and Licensing. The NPDES prohibited
industrial sources and publicly owned treatment works
from discharging pollutants into navigable waters without
a process review and permit. Under NPDES, all point
source discharges of pollution into the waters of the
United States are required to obtain a permit. Point
source discharges come from ‘‘any discernible, confined,
and discrete conveyance including but not limited to any
pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding
operation, landfill leachate collection system, vessel or
other floating craft from which pollutants are or may be
discharged.’’ The EPA Administrator may issue a permit
for discharge on the condition that the discharge meets
applicable requirements, which are detailed in the Act.
Permitted discharges are only allowed insofar as federal
effluent limitations and state water quality standards can
continue to be met. The Act also provides that, given EPA
approval, a state may administer its own permit program
in lieu of the federal program so long as the state effort is
deemed at least as effective as the federal controls.
NONPOINT SOURCE POLLUTION CONTROL
Since its use in 1972, the term ‘‘nonpoint source pollution’’
has been used in a variety of sometimes confusing
contexts. Most simply, a nonpoint source is any source
of pollution that is not otherwise legally considered as
a point source. In 1987, Congress enacted Section 319
of Title III, Standards and Enforcement, of the Clean
Water Act to establish a national program to control
nonpoint sources of pollution. In its guidance for the
program, the EPA rigorously defines nonpoint source
pollution as that ‘‘. . . caused by rainfall or snowmelt
moving over and through the ground and carrying natural
596 THE CLEAN WATER ACT

Table 1. Toxic Pollutants Designated Pursuant to Section

307(a)(1) of the Clean Water Act 56.Selenium and compounds
57.Silver and compounds
1. Acenaphthene 58.2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD)
2. Acrolein 59.Tetrachloroethylene
3. Acrylonitrile 60.Thallium and compounds
4. Aldrin/Dieldrin 61.Toluene
5. Antimony and compounds 62.Toxaphene
6. Arsenic and compounds 63.Trichloroethylene
7. Asbestos 64.Vinyl chloride
8. Benzene 65.Zinc and compounds
9. Benzidine
10. Beryllium and compounds
11. Cadmium and compounds
12. Carbon tetrachloride and human-made pollutants into lakes, rivers, streams,
13. Chlordane (technical mixture and metabolites) wetlands, estuaries, other coastal waters, and ground
14. Chlorinated benzenes (other than di-chlorobenzenes) water. Atmospheric deposition and hydrologic modification
15 .Chlorinated ethanes (including 1,2-di-chloroethane, 1,1,1
are also sources of nonpoint pollution.’’ A major source
trichloroethane, and hexachloroethane)-
of typically nonpoint source pollution was recognized in
16. Chloroalkyl ethers (chloroethyl and mixed ethers)
17. Chlorinated naphthalene urban stormwater. In response, and to address the specific
18. Chlorinated phenols (other than those listed elsewhere; concerns of contaminated stormwater runoff, the National
includes trichlorophenols and chlorinated cresols) Stormwater Program was established as part of the
19. Chloroform 1987 Clean Water Act amendments. Although stormwater
20. 2-chlorophenol is considered nonpoint source pollution, the hazardous
21. Chromium and compounds constituents in the water may come from various points
22. Copper and compounds sources such as industry, sewers, or construction. Thus,
23. Cyanides the National Stormwater Program is controlled through
24. DDT and metabolites
NPDES, previously discussed.
25. Dichlorobenzenes (1,2-, 1,3-, and 1,4-di-chlorobenzenes)
26. Dichlorobenzidine
27. Dichloroethylenes (1,1-, and 1,2-dichloroethylene) EFFLUENT LIMITATIONS AND WATER QUALITY
28. 2,4-dichlorophenol STANDARDS
29. Dichloropropane and dichloropropene
30. 2,4-dimethylphenol
In Section 401 of Title IV, Permits and Licensing, the
31. Dinitrotoluene
32. Diphenylhydrazine
Act prohibits the discharge of pollutants in excess of
33. Endosulfan and metabolites effluent limitations, and makes it unlawful to discharge
34. Endrin and metabolites radiological, chemical, or biological warfare agents; high-
35. Ethylbenzene level radioactive waste; or any medical waste into
36. Fluoranthene navigable waters. Effluent limitations from point sources
37. Haloethers (other than those listed elsewhere; includes other than publicly owned treatment works (POTWs)
chlorophenylphenyl ethers, bromophenylphenyl ether, must be treated using best practicable control technology,
bis(dichloroisopropyl) ether, bis-(chloroethoxy) methane or BACT. The effluent limitations provide standards for
and polychlorinated diphenyl ethers) a variety of pollutants and pollution sources, including
38. Halomethanes (other than those listed elsewhere; includes
but not limited to sources such as coal mining, landfills,
methylene chloride, methylchloride, methylbromide,
bromoform, dichlorobromomethane
construction, iron and steel manufacturing, meat products,
39. Heptachlor and metabolites pharmaceutical, paper products, and leather and tanning
40. Hexachlorobutadiene industry. Each source type has a different set of EPA
41. Hexachlorocyclohexane effluent limitation standards to meet. Toxic pollutants
42. Hexachlorocyclopentadiene defined in the Act (Table 1) require treatment using the
43. Isophorone best available technology that is economically achievable.
44. Lead and compounds If the source discharges into a POTW (e.g., via a connection
45. Mercury and compounds to a sanitary sewer), it must comply with applicable
46. Naphthalene pretreatment requirements as well as POTW expectations.
47. Nickel and compounds
48. Nitrobenzene
49. Nitrophenols (including 2,4-dinitrophenol, dinitrocresol) WATERSHED RESTORATION PLANS
50. Nitrosamines
51. Pentachlorophenol Section 303(d) of Title III, Standards and Enforcement,
52. Phenol
of the Act requires that states and the EPA identify
53. Phthalate esters
rivers, lakes, and coastal waters threatened or already
54. Polychlorinated biphenyls (PCBs)
55. Polynuclear aromatic hydrocarbons (including impaired as a result of one or more specific pollutants.
benzanthracenes, benzopyrenes, benzofluoranthene, The states or EPA must develop ‘‘Total Maximum Daily
chrysenes, dibenz-anthracenes, and indenopyrenes) Loads’’ (TDML) for every water body that has been placed
on the EPA-designated threatened or impaired waters

list. A TDML is thus a pollution cap or ceiling for the
water body, and it has the functional effect of a cleanup
plan. An associated plan for the affected water body then
determines exactly how to attain that cap. The TMDL must
specify problems, determine pollution reductions needed to
solve the problems, identify pollution sources, and assign
responsibilities for needed action. Also under Title III,
various other specific and significant sources of pollution
are regulated. Thermal discharges, marine sanitation
devices, and oil and hazardous substance discharge are a
few aspects of water pollution so regulated. As all of these
sources have the potential to be hazardous polluters, the
Act sets standards to which each must abide in different
manners to ensure the quality of the water.
PLANS, GRANTS, AND FUNDING
The CWA both requires and assists in the development and
implementation of waste treatment management plans
and practices to achieve the water quality goals of the
Act. Plans and practices must provide for treatment of
waste prior to any discharge of pollutants into receiving
waters, as well as the secure disposal of other pollution
sources to avoid migration that could ultimately cause
water or other environmental pollution. To accomplish
these goals, Title II of the Act outlines a program of
grants to states, municipalities, or other agencies for the
construction of governmental water treatment facilities,
or POTWs. Revisions of the Act in 1981 streamlined
the municipal construction grants process, improving the
capabilities of treatment plants built under the program.
Additional changes in 1987 phased out the construction
grants program but replaced it with the State Water
Pollution Control Revolving Fund (found in Title VI
of the Act), known within professional circles as the
Clean Water State Revolving Fund. That funding strategy
addressed water quality needs by building on EPA-State
partnerships to identify and meet state and regional water
quality issues.
KEY AMENDMENTS AND ASSOCIATED WATER
PROTECTION LAWS
Safe Drinking Water Act
Over the years, many other environmentally related laws
have changed or otherwise impacted parts of the CWA. The
Safe Drinking Water Act (SDWA) was originally passed
by Congress in 1974 to specifically protect the nation’s
public drinking water supply. The SDWA authorized the
EPA to set national health-based standards for drinking
water to protect against both naturally occurring as
well as man-made contaminants that may be found in
drinking water. These standards are divided into primary
and secondary standards. Primary standards are set to
protect the public’s health, are legally enforceable, and
apply to public water systems. Secondary standards are
nonenforceable guidelines set to regulate contaminants in
the drinking water that may cause negative cosmetic or
aesthetic effects, such as tooth discoloration or bad odor.
States may choose to adopt these secondary standards as
THE CLEAN WATER ACT 597
enforceable regulations. The law was amended in 1986
and 1996 and requires various actions to protect drinking
water sources, including rivers, lakes, reservoirs, springs,
and groundwater.
Oil Pollution Act
As a response to the Exxon Valdez disaster of 1989, when
a crude oil tanker ran into a reef on the coast of Alaska
and spilled 10.8 million gallons of the oil into the Prince
William Sound, Congress passed the Oil Pollution Act in
1990. This act amended the CWA to significantly raise the
limits of liability to would-be polluters, and the amount
of compensation that must me made to injured parties
resulting from an oil spill.
Great Lakes Critical Programs Act
As a result of their immense size and value as a freshwater
supply, state, federal, and international steps have been
taken to protect the water quality of the Great Lakes.
Title I of the Great Lakes Critical Programs Act of 1990,
for example, put into place parts of the U.S.-Canadian
Great Lakes Water Quality Agreement of 1978, wherein
the two nations agreed to jointly reduce certain toxic
pollutants entering these resources. That law required
the EPA to establish water quality criteria for the Great
Lakes for 29 toxic pollutants with a particular focus on
persistent bioaccumulative toxics (such agents tend to
occur in higher concentration in aquatic biota than in
open waters). The criteria are intended to protect human
health, aquatic life, and wildlife and include the first-ever
EPA wildlife criteria to protect birds and mammals from
long-term exposure to mercury, DDT, PCBs, and dioxin.
It also required the EPA to help the states implement the
criteria on a specific schedule.
With a growing world population and intense industrial
demands on a finite water supply, regulations concerning
U.S. water resources will continue to change and evolve
with time. As the most prominent water quality law
presently in effect, the CWA will continue to play a
significant roll in the maintenance of water quality for
future generations in the face of technological changes
and demands.
READING LIST
EPA Laws and Regulations—Clean Water Act History. Available:
http://www.epa.gov/region5/water/cwa.htm.
EPA Water History Website. Available: http://www.epa.gov/his-
tory/topics/fwpca/05.htm.
Digest of Federal Resource Laws of Interest to the U.S. Fish and
Wildlife Service. Federal Water Pollution Control Act (Clean
Water Act). Available: http://laws.fws.gov/lawsdigest/fwatrpo.
html.
River Network Website—Understanding the Clean Water Act.
Available: http://cleanwateract.org/pages/c1.htm.
Knudson, S. Quick Reference: Clean Water Act (CWA). Cen-
ter for Sustainable Systems, Ann Arbor, MI. Available:
http://css.snre.umich.edu/css doc/CWA.pdf.
Copeland, C. (2002, 2004). CRS Report for Congress—Clean
Water Act: Summary of the Law.
598 CLEAN WATER ACT, WATER QUALITY CRITERIA/STANDARDS, TMDLS, AND WEIGHT-OF-EVIDENCE APPROACH
Clean Water Act. Available: http://www.boozman.house.gov/Up-
loadedFiles/H20%20%20Clean%20Water%20Act%20A%20
Summary%20 of%20 the%20Law.pdf.
Environmental Literacy Council—Clean Water Act. Available:
http://www.enviroliteracy.org/article.php/372.html.
EPA Electronic ‘‘Snapshot’’ of the Clean Water Act (the Act in
PDF format). Available: http://www.epa.gov/region5/water/cwa.
htm#ECWA.
NOAA Legislative Summaries—Federal Water Pollution Control
Act. Available: http://www.csc.noaa.gov/opis/html/summary/
cwa.htm.
CLEAN WATER ACT, WATER QUALITY
CRITERIA/STANDARDS, TMDLS, AND
WEIGHT-OF-EVIDENCE APPROACH FOR
REGULATING WATER QUALITY
G. FRED LEE
ANNE JONES-LEE
G. Fred Lee & Associates
El Macero, California
INTRODUCTION
The 1972 amendments to the Federal Water Pollution
Control Act (Clean Water Act, CWA) established a regula-
tory framework to maintain and enhance water quality in
waterbodies of the United States. The CWA specified that
waterbodies were to be classified with respect to their ben-
eficial uses, such as domestic water supply, propagation of
fish and aquatic life, and recreation, and that the U.S. EPA
was to develop national water quality criteria for chemi-
cal and other agents that would protect the designated
beneficial uses of waterbodies. The numeric chemical-
concentration-based national water quality criteria that
it eventually developed were designed to be protective in
any water under worst-case exposure conditions. The U.S.
EPA criteria, in turn, were to be used by the states as
the basis for water quality standards, the benchmark for
control of beneficial use-impairment of waterbodies.
The way in which these CWA provisions have been
implemented has been to require that a waterbody in
which a water quality standard was exceeded be listed as
a Clean Water Act section 303(d)-‘‘impaired’’ waterbody.
Such a listing requires that a program be initiated to
control the sources of the constituents responsible for the
water quality standard violation, which is done through a
total maximum daily load (TMDL) assessment through
which is determined a load that would not result in
exceeding the standard; that load is then apportioned
among those discharging the constituent.
Although this TMDL approach was originally adopted
in 1972, it was not until the late 1990s that it
began to be implemented to any significant extent. This
implementation developed from environmental groups
filing suit against the U.S. EPA for having failed to
implement the TMDL provisions of the Clean Water
Act. As part of settling the lawsuit, the U.S. EPA
agreed to see to the implementation of TMDLs by the
states. Considerable controversy, exists however, about
the appropriateness of the TMDL process as it is typically
being implemented for regulating water quality caused
largely by the use of numeric U.S. EPA national water
quality criteria and state standards equivalent to them as
the benchmark for evaluation of water quality. Following
is a synopsis of how this approach came to be established
and issues that remain inadequately addressed in the
pursuit of the goals of the CWA. Also described is a ‘‘best
professional judgment’’ triad weight-of-evidence approach
that provides a technically valid, cost-effective framework
for assessing water quality/beneficial-use impairments
and their remediation.
EARLY REGULATORY APPROACH—ISSUES STILL
NEEDING ATTENTION
Lee (1) discussed several significant technical shortcom-
ings inherent in the TMDL approach adopted by the U.S.
EPA for regulating chemical constituents for the protection
of water quality. For example, in the 1960s, when toxicity
tests were starting to evaluate the toxicity of wastewater
discharges, it was often found that a portion of the heavy
metals in some discharges was in forms that did not cause
toxicity. This finding was in accord with what would be
expected based on the aquatic chemistry of heavy metals.
It was recognized that heavy metals exist in a variety of
chemical forms; given the chemical nature of the forms, it
could be expected that not all of them would be equally
available/toxic to aquatic life, although this distinction
could not be made with chemical analytical techniques.
This situation was sufficiently well known that by the
early 1970s, the National Academies of Science and Engi-
neering concluded, as part of their development of the
Blue Book of Water Quality Criteria (2), that heavy metals
in wastewater discharges could not be reliably regulated
based on chemical concentrations. Rather, because of the
numerous unquantifiable factors that control the manifes-
tation of a chemical’s toxicity, they recommended a toxicity
test approach to determine the availability of the heavy
metals, either alone or in combination with other metals
or other substances, in a particular water. The National
Academies of Science and Engineering Blue Book Criteria
were adopted by the U.S. EPA (3) in its 1976 Red Book
Criteria, which were the first official water quality criteria
developed pursuant to the Clean Water Act.
In the early 1980s, however, the U.S. EPA aban-
doned the toxicity testing approach recommended by the
National Academies of Science and Engineering. In its
place, it adopted a policy of applying the numeric, worst-
case, national water quality criteria (generally, chronic
exposure, safe concentrations) to the concentrations of
total recoverable metals (i.e., those forms that are measur-
able after strong acid digestion of the sample), rather than
to the available forms, in water quality evaluation and
regulation. That approach lead to overregulation of heavy
metals because in some situations, substantial parts of the
‘‘total recoverable’’ heavy metals are nontoxic/unavailable.
Some relief from the overregulation of heavy metals was
provided when application of the criteria was shifted from
‘‘total recoverable’’ forms to ‘‘ambient-water dissolved’’
 CLEAN WATER ACT, WATER QUALITY CRITERIA/STANDARDS, TMDLS, AND WEIGHT-OF-EVIDENCE APPROACH
forms of metals (4). The shift in focus at that time was
not based on the finding of any new information because
it had been well-established in the 1960s and 1970s that
particulate forms of heavy metals in the water column
were nontoxic. Focusing on dissolved forms of heavy metals
corrected a long-standing problem in the implementation
of the national water quality criteria into state water
quality standards. That notwithstanding, the Agency
has still not addressed its inappropriate application of
water quality criteria for many other constituents, such
as organics, to total concentrations rather than properly
addressing contaminant availability.
Although deficiencies in the conventional application
of the water quality criteria were generally recognized,
they were not addressed by the U.S. EPA primarily
because the regulations that were developed were not
being enforced by either the U.S. EPA or many of the
states. As a result, the promulgation took place of the
National Toxics Rule in subsequent revisions of the
Clean Water Act, through which Congress mandated that
states either adopt the U.S. EPA criteria for toxics or
have them imposed on them by the U.S. EPA. By the
early 1990s, all states had adopted U.S. EPA criteria
for ‘‘toxics.’’ California’s regulations adopting the U.S.
EPA criteria as state standards, however, were soon
judged invalid through court action because California
state law also requires consideration of economic impact
of water pollution control regulations. As the California
State Water Resources Control Board did not comply
with those state requirements, the courts determined that
the regulations must be voided. Thus, for many years,
California did not have water quality criteria/objectives
for ‘‘toxics.’’ Finally, in 2000, the U.S. EPA Region 9
imposed what became known as the California Toxics
Rule criteria (5). They are the U.S. EPA criteria for
‘‘toxics’’ that were originally adopted in the mid-1980s,
or subsequent updates, such as the U.S. EPA (4,6–8).
The most recent update of national water quality criteria
occurred in 2002, when the U.S. EPA (9) developed its
currently recommended national water quality criteria.
The U.S. EPA requires that as states update their criteria,
they incorporate the 2002 criteria as the state standards.
Lee et al. (10), Lee and Jones (11), and Lee and Jones-
Lee (12) discussed alternative approaches for assessing
and controlling the impact of contaminants on water qual-
ity that took better account of contaminant availability to
affect water quality, thus directing the financial resources
available first toward defining those constituents that
adversely impact the beneficial uses of a waterbody and
then toward controlling those constituents to the extent
necessary to protect those uses.
PRIORITY POLLUTANT LIST
The 1972 Clean Water Act also mandated that the U.S.
EPA develop a list of ‘‘priority pollutants’’ that was to
include those chemicals found in water that should receive
the highest attention for regulatory action. National water
quality criteria were then to be developed for each of those
chemicals to protect fish and aquatic life in all waters.
Congress, however, did not fund the U.S. EPA adequately
599
to carry out this mandate. Finally, when the U.S. EPA
could not develop the list within the timeframe allowed,
an environmental group filed suit to force the U.S. EPA
to do so. In response to that suit, in the mid-1970s, the
U.S. EPA’s attorneys and environmental group attorneys,
with limited technical input and without public peer
review, promulgated what is now known as the ‘‘Priority
Pollutant’’ list.
Despite the intention to focus on water quality
problems, in actuality, the ‘‘Priority Pollutant’’ list
has proven to be detrimental to properly defining the
constituents that are significantly adverse to the beneficial
uses of waterbodies. The list was not properly peer-
reviewed for its inclusion and prioritization of pollutants
of real water quality significance. Instead, the list focused
primarily on what are known as rodent carcinogens,
i.e., those constituents that, at high concentrations over
extended periods of exposure, cause cancer in rats, but do
not necessarily have a great significance to water quality.
Large amounts of public resources have been devoted to
analyzing for and then developing control programs for
many of the rodent carcinogens, especially the chlorinated
solvents, while neglecting many pollutants of greater
water quality significance.
In looking at this situation, Dr. Christian Daughton,
Chief, Environmental Chemistry Branch, U.S. EPA
National Exposure Research Laboratory, indicated that
there are more than 22 million organic and inorganic
substances, with nearly 6 million commercially available.
The current water quality regulatory approach addresses
fewer than 200 of those chemicals as potential water
pollutants, i.e., the ‘‘priority pollutants.’’ He stated,
‘‘Regulated pollutants compose but a very small piece
of the universe of chemical stressors to which organisms
can be exposed on a continual basis’’ (13).
IMPLEMENTATION OF TMDLS
The establishment of TMDLs focuses on achieving water
quality standards in receiving water. This focus led to
a review of the TMDL-based water pollution control
program by the National Research Council (NRC). The
NRC’s review (14) discussed technical deficiencies in the
U.S. EPA’s TMDL program. Waterbodies have been placed
inappropriately on the Clean Water Act section 303(d) list
of impaired waterbodies on the basis of unreliable
evaluation. TMDL goals of achieving worst-case water
quality standards for total concentrations are often
inappropriate goals for solving real, significant, water
quality/use-impairment problems in a technically valid,
cost-effective manner. Most importantly, inadequate time
and inadequate funding are available to support the
development of TMDLs as they are being administered
through the U.S. EPA and state regulatory agencies.
The first step toward establishing a more appropriate
TMDL process should be an assessment of the appropri-
ateness of the water quality standards that established the
303(d) listing and the standards that serve as TMDL goals
to correct water quality impairment. As a considerable
part of the TMDL program is directed toward sources such
as agricultural runoff and urban runoff that frequently
600 CLEAN WATER ACT, WATER QUALITY CRITERIA/STANDARDS, TMDLS, AND WEIGHT-OF-EVIDENCE APPROACH

contain constituents that are, in substantial proportion,
nontoxic, and unavailable, it is important that the U.S.
EPA and the states refocus TMDL programs on controlling
toxic, available forms, as opposed to total concentrations
of constituents.
BPJ TRIAD WEIGHT-OF-EVIDENCE
Because of the technical inappropriateness and unreliabil-
ity of using overly simplistic, even though administratively
expedient, indicators of impact, increasing attention is
being given to the use of a triad ‘‘weight-of-evidence’’
approach as a regulatory tool for water quality impact
assessment and management. Although this approach
has been configured in several ways with varying degrees
of technical validity, a well-accepted, technically appro-
priate format is a ‘‘best professional judgment’’ (BPJ)
evaluation of a triad of key parameters: aquatic life
toxicity/bioaccumulation of the contaminant(s); aquatic
organism assemblage information in the aquatic system
of concern; and chemical kinetic/thermodynamic infor-
mation pertaining to the contaminant(s) of interest and
the aquatic system of concern. These components are
described below.
Toxicity/Bioaccumulation
The availability of most chemical contaminants to aquatic
life cannot be determined through chemical analysis; the
availability can be affected by the character of the ambient
water, the nature of the exposure conditions, and the
sensitivity of the organisms of concern. Furthermore,
routine chemical analysis does not cover all potential
toxicants that may be present. Therefore, a key component
of a BPJ weight-of-evidence evaluation for water quality
impact assessment and management is aquatic life toxicity
testing and/or bioaccumulation testing of aquatic organism
tissue for potentially hazardous chemicals that are a threat
to human health or higher trophic-level organisms that
use aquatic life as food. The importance of using the BJP
triad framework for the interpretation of the results of
this testing is illustrated by the fact that, as discussed
by Lee and Jones-Lee (15), finding aquatic life toxicity in
laboratory tests of ambient water or sediment cannot be
assumed to mean that that toxicity represents a significant
impairment of the beneficial uses of the waterbody that is
of concern to the public. It is not necessarily possible
to equate laboratory-based water column or sediment
toxicity with water quality impairment. For example,
many sediments have natural toxicity because of low
dissolved oxygen, ammonia, and hydrogen sulfide; yet the
waterbodies associated with them have excellent fisheries
and high water quality. The other aspects of the triad must
be used with this information to make a best professional
judgment regarding the significance of the toxicity and
bioaccumulation information.
Organism Assemblage
Organism assemblage information includes description of
the numbers, types, and characteristics of aquatic life and,
as appropriate, terrestrial organisms such as fish-eating
birds, present at a potentially impacted site. Insight into
whether water quality has been adversely affected can be
gained from understanding how the organism assemblage
at the location compares with that which might be expected
to be supported there. However, a variety of physical (flow,
temperature, sunlight, sediment, and habitat alteration,
etc.), non-potential-pollutant chemical (TDS, nutrients,
organic constituents, hardness, alkalinity, etc.), and
biological (reproductive cycles, disease, predation, etc.)
factors other than chemical potential pollutants can affect
the numbers, types, and characteristics of aquatic life in
a waterbody’s water column or sediments. Therefore, it is
critical that this information be considered in the context
of a BPJ evaluation in assessing the water quality impacts
of chemicals on the beneficial uses of a waterbody.
Chemical Information
Chemical concentration has been one of the most
convenient, yet most misunderstood and misused, pieces of
information in water quality evaluation and management.
Unfortunately, chemical information and ‘‘chemistry’’
have often been considered to be a laundry list of total
concentrations of a few regulated constituents having
water quality standards, which are mechanically applied
to discharges, ambient water, or sediment. This result
occurs despite that for half a century, it has been
known that the total concentration of a potentially toxic
constituent in the water column and/or sediments is
an unreliable basis for estimating the impacts of that
contaminant on the beneficial uses of a waterbody. Thus,
the administratively expedient application of such values
directly can distort the significance of that chemical
contaminant to water quality.
The reason the total concentration of a selected
chemical is unreliable for assessing water quality/use-
impairments is that many chemical constituents exist
in aquatic systems in a variety of chemical forms, only
some of which are toxic or available to affect aquatic
life. The aquatic ‘‘chemistry,’’ i.e., the kinetics (rates) and
thermodynamics (positions of equilibrium) of reactions
that a chemical can undergo in a natural water system, is
illustrated in the aquatic chemistry ‘‘wheel’’ presented in
Fig. 1.
As illustrated, chemicals can undergo oxidation/
reduction, volatilization, photochemical, complexation,
sorption/desorption, precipitation, hydrolysis, and
acid/base reactions in natural water systems. Many
reactions alter the availability of the chemical to
affect aquatic life. Although measurement of the total
concentration of a chemical includes essentially all of
these forms, the amount of the ‘‘available’’ forms of the
chemical present depends in part on the nature of the
chemical and the types and amounts of materials in the
water and/or sediment that act to ‘‘detoxify’’ the chemical,
i.e., render it nontoxic or unavailable to affect aquatic life
through these reactions. These types of materials include
organic carbon, sulfides, carbonates, hydrous oxides, clay
minerals, and others. The amount of available forms also
depends on the rates of reaction, the extent to which these
reactions occur, and the comparative availability among
the forms.
 CLEAN WATER ACT, WATER QUALITY CRITERIA/STANDARDS, TMDLS, AND WEIGHT-OF-EVIDENCE APPROACH
Gas phase
T Q
HXx+ Z evaluated for having some type of biological impact.
Volatilization
HXx− W Then the concentrations of a few selected contaminants
Acid/base Photochemical
transformation
+
Yx Aqueous X HD
Hydrolysis oxidation Complexation x
Yx XxC
state X−
Biochemical
transformation Sorption
A to sediments having that or higher concentrations of the
B Precipitation
X−
MX+ MX−
Distribution among species depends on kinetics &
thermodynamics of reactions in the particular aquatic
system
Each chemical species has its own toxicity characteristics
many forms are non-toxic
Figure 1. Aquatic chemistry of chemical constituents.
No simplistic method exists by which to reliably quan-
titatively account for these interactions by mathematical
manipulation or chemical analysis. It is for this reason
that chemical concentration information, especially total
concentrations of chemicals, should not be used alone in
assessing water quality or impairment of water quality.
The disregard for the aquatic chemistry of contaminants
and for the nature and duration of organism exposure
in aquatic systems makes the application of worst-case,
numeric water quality criteria typically overly restric-
tive for the protection of beneficial uses of waterbodies.
Although chemical concentration information can raise
issues to consider and sources that may be worthy of fur-
ther investigation, it is unreliable for reaching a conclusion
about ‘‘water quality’’ or beneficial use-impairment. It is
for this reason that the aquatic toxicity/bioaccumulation
and organism assemblage information are also critical
parts of the triad evaluation, and the need for objective,
technically informed, best professional judgment is clear.
CO-OCCURRENCE-BASED SEDIMENT QUALITY
GUIDELINES: CAUTION
The issue of sediment quality criteria and guidelines
warrants special attention in this discussion. Reliable
evaluation and regulation of the impacts of contaminants
in sediment systems is substantially more complex
and more ill-defined than in ambient waters. Although
it has been long understood that no relationship
exists between the total concentrations of chemical
contaminants in sediments and toxicity, bioaccumulation,
or adverse impact on beneficial uses of a water,
chemical concentration is simple and numeric, and lends
itself to easy decision-making. In an attempt to make
601
simple chemical analysis relevant, some have developed
and advanced the use of co-occurrence-based ‘‘sediment
quality guidelines’’ (16–18). A group of sediments was
in those sediments that exhibit an ‘‘impact’’ were
examined. Basically, then, for each contaminant, the
lowest concentration associated with an ‘‘impacted’’
sediment was said to be adverse, a cause for concern in any
sediment, and the basis for a ‘‘sediment quality guideline.’’
No consideration was given to the actual cause of the
‘‘impact’’ reported, to the fact that total concentration is
not related to impact, to several chemical and conditions
that are well-understood to cause sediment toxicity, or
X+ contaminant without exhibiting adverse impacts. The only
basis for the so-called ‘‘guideline’’ concentration was the
‘‘co-occurrence’’ of the contaminant in the sediment with
some biological impact attributed to that sediment. It is
entirely expected that chemical constituents derived from
urban industrial areas, although having biological effects,
often occur in the presence of other constituents, which,
although in nontoxic, unavailable forms, are present in
elevated concentrations.
Co-occurrence-based approaches exemplify inappropri-
ate use of chemical information in a water quality assess-
ment but nonetheless are popularized because of their ease
of application. As discussed by Lee and Jones-Lee (19–21),
no cause-and-effect relationship is established in the co-
occurrence-based values. Although so-called ‘‘correlations’’
exist between toxicity and a sediment quality guideline is
exceeded, this is coincidental and unreliable for an assess-
ment of the cause of the biological impacts. The fact that a
chemical constituent exceeds a particular ‘‘sediment qual-
ity guideline’’ does not mean that that constituent is in any
way related to biological effects, such as toxicity, bioaccu-
mulation, and/or changes in organism assemblages. The
actual cause of the biological response can readily be either
a constituent(s) that is not measured or not considered in
the scheme or a combination of constituents that, although
measured, do not, individually or summed, exceed the ‘‘sed-
iment quality guidelines.’’ Thus, no expectation can exist
that funds spent to achieve ‘‘sediment quality guideline’’
values will result in any improvement in sediment/water
quality or that sediments targeted by the exceedance of
guideline values are, in fact, of the greatest concern.
Some try to skirt the fundamental technical flaws in
the approach by limiting its use to ‘‘screening’’ sediments.
However, using a patently unreliable ‘‘screening’’ tool
can do nothing but provide patently unreliable results,
which will serve to misdirect concern, responsibility,
and funds for remediation, and leave real problem
areas unaddressed. Although sediments that exceed one
or more ‘‘sediment quality guidelines’’ may, in fact,
merit further investigation or remediation, the guideline
values are meaningless for making that assessment;
under no circumstances should anyone assume that the
exceedance of a guideline value represents a cause-and-
effect relationship that can determine the likely cause of
a biological response. As discussed by O’Connor (22–24),
O’Connor and Paul (25), O’Connor et al. (26), Engler (27),
602 CLEAN WATER ACT, WATER QUALITY CRITERIA/STANDARDS, TMDLS, AND WEIGHT-OF-EVIDENCE APPROACH
DiToro (28), Chapman (29), Burton (30), and Lee and
Jones-Lee (15,19–21), the co-occurrence approaches are
obviously technically invalid and unreliable for assessing
cause-and-effect. A reliable evaluation and regulatory
program must be based on reliable assessments of the
cause of the adverse effect.
RECOMMENDED APPROACH FOR INCORPORATION OF
CHEMICAL INFORMATION INTO A BPJ TRIAD
WEIGHT-OF-EVIDENCE WATER QUALITY EVALUATION
The recommended approach for the use of chemical
concentration information in a BPJ triad weight-of-
evidence evaluation of the cause of a water quality
impairment begins with the reliable definition of the water
quality/use-impairment that is of concern. The existence
of a contaminant in total concentrations greater than
a worst-case-based standard/guideline is not, in itself, an
adverse impact unless that contaminant is causing adverse
impacts to the beneficial uses of the waterbody. Thus, for
example, before measuring the concentrations of copper,
lead, zinc, and cadmium that typically occur in street
and highway stormwater runoff at concentrations above
U.S. EPA worst-case-based water quality criteria and
state water quality standards based on those criteria, the
chemical impact evaluation approach determines whether
the water or sediment of concern is toxic. Jones-Lee and
Lee (31) describe an evaluation monitoring approach that
has been developed to focus on chemical impacts rather
than on chemical concentrations.
If toxicity is found in laboratory tests of a water or
sediment, then an assessment should be made as to
whether that toxicity translates to an adverse impact
on the waterbody’s beneficial uses, such as fisheries,
survival or reproduction of desired aquatic life, and so
on. It should not be assumed that toxicity measured
in a standard toxicity test necessarily translates to a
toxicity that is significantly altering the numbers, types,
and characteristics of desirable forms of aquatic life in
a waterbody. This fact is especially true for situations
such as urban area and highway stormwater runoff,
where there can be short-term pulses of toxicity associated
with a runoff event that are not of sufficient magnitude
or duration to exceed the critical magnitude/duration
coupling needed to be adverse to important forms of
aquatic life in a waterbody.
Figure 2 shows a typical relationship between duration
of exposure and toxicity; as illustrated, the manifestation
of a toxicity response to available forms of a contaminant
depends on the duration of exposure. Elevated concen-
trations of a toxicant can be tolerated by aquatic life,
provided that the duration of exposure of this toxicity is
shorter than the critical, or threshold, toxicity/duration of
exposure coupling for that contaminant and organism in
the ambient water. Exposure durations of aquatic life can
be affected by the intermittent nature of the introduction
of the contaminant, the rate and nature of dilution in the
ambient water, avoidance or attraction behavior of the
organism, and so on.
If measured toxicity is determined to potentially affect
the beneficial uses of the waterbody, then a toxicity
Impact
Concentration
of available
forms of
contaminant
Chronic exposure
safe concentration
Duration of organism exposure
Figure 2. Critical concentration—duration of exposure relation-
ship.
identification evaluation (TIE) should be conducted to
evaluate the cause of the toxicity (32–34). The TIE process
defines the availability of contaminants present and can
elucidate the potential availability of the toxicity-causing
contaminant(s) from its various sources. This process,
then, can direct control toward those sources that are
contributing significantly to the toxicity. Not only is this
approach more technically sound, but it also addresses the
issue of potential impacts of unrecognized, unmeasured,
and/or unregulated pollutants that has been the subject of
increasing importance in water quality management.
SUMMARY AND CONCLUSION
The federal Clean Water Act and amendments have
directed the development of water quality criteria and
standards and a framework for identifying and addressing
beneficial use-impairments in the waters of the country. In
the quest for administratively simple means by which to
evaluate and regulate water quality and sediment quality,
worst-case-based criteria and standards for a select group
of chemicals have been developed. These are applied to
the concentrations of contaminants in ambient waters
as a means of judging water quality. This approach
is known to be unreliable for evaluating or regulating
water quality because it does not properly account for the
beneficial uses of the water; the nature, behavior, and
forms of chemical contaminants; or the unrecognized and
unregulated pollutants.
The BPJ triad weight-of-evidence approach described
herein provides a technically sound foundation and
approach for assessing water quality impacts, causes of
the impacts, and directions for controlling the impact. It
is not as administratively expedient as simple comparison
of chemical concentration data; however, that simplistic
approach is not reliable for determining impairments
or effecting control of real water quality problems.
The BPJ triad weight-of-evidence approach requires
the allocation of sufficient funds to determine the
characteristics of the constituents/conditions of concern,
with particular emphasis on properly defining toxicity
and water quality cause-and-effect relationships. It
also requires that individuals knowledgeable in aquatic
chemistry, aquatic toxicology, and water quality provide
guidance on, and appropriate interpretation of the
 CLEAN WATER ACT, WATER QUALITY CRITERIA/STANDARDS, TMDLS, AND WEIGHT-OF-EVIDENCE APPROACH
results of, the kinds of chemical and toxicity studies
that are needed to appropriately incorporate chemical
information into assessing the water quality significance
of chemical constituents in impacting the beneficial uses
of a waterbody.
Numeric weight-of-evidence approaches in which arbi-
trary scale factors are assigned to each of the three com-
ponents of the triad are technically invalid, because the
scaling factors do not represent the relationship between a
chemical constituent in a water or sediment and its impact
on the water quality-beneficial uses of a waterbody.
Significant problems can occur with the use of the
BPJ approach in incorporating chemical information into
the triad. The use of total concentrations of constituents
and/or the exceedance of a co-occurrence-based so-called
sediment quality guideline is technically invalid. Such
an approach can distort the triad water/sediment quality
evaluation because it incorporates information into the
triad that is not related to the impact of the chemicals on
aquatic-life-related beneficial uses.
The BPJ weight-of-evidence approach should be based
on the consensus of a panel of experts who, in a public,
interactive, peer-review process, consider the information
available, define what additional information is needed,
and then render an opinion as to the integrated assessment
of the information available on the significance of a
particular chemical constituent in impacting the beneficial
uses of a waterbody. The characteristics of the components
of a BPJ weight-of-evidence approach that focuses on the
appropriate use of chemical information are discussed
further by Lee and Jones-Lee (35).
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(1995). Incidence of adverse biological effects within ranges of
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22. O’Connor, T.R. (1999). Sediment quality guidelines do not
guide. Environ. Toxicol. Chem. SETAC News 19: 28–29.
23. O’Connor, T.R. (1999). Sediment Quality Guidelines Reply-
to-Reply. NOAA National Status and Trends Program, May.
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lication, Water Environment Federation, Alexandria, VA,
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25. O’Connor, T.P. and Paul, J.F. (2000). Misfit between Sedi-
ment Toxicity and Chemistry. Mar. Poll. Bull. 40: 59–64.
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Quality (and other) Assessments. Presented at the 2002 Fifth
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Use of Sediment Quality Guidelines (SQGs) and Related Tools
for the Assessment of Contaminated Sediments. Presented at
the 2002 Fifth International Symposium on Sediment Quality
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as an Alternative to Conventional Water Quality Monitoring
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Evaluations, Phase I Toxicity Characterization Procedures,
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Evaluations, Phase II Toxicity Identification Procedures for
Samples Exhibiting Acute and Chronic Toxicity. EPA/600/R-
92/080, U.S. EPA Office of Research & Development,
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Water Quality Monitoring Program for Evaluation of the
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and Irrigation Water Discharges from Irrigated Agricul-
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dec.pdf.
35. Lee, G.F. and Jones-Lee, A. (2004). Appropriate Incor-
poration of Chemical Information in a Best Profes-
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http://www.gfredlee.com/BPJWOEpaper-pdf.
THE CONSTITUTION AND EARLY ATTEMPTS AT
RATIONAL WATER PLANNING
MARTIN REUSS, PH.D
Office of History Headquarters
U.S. Army Corps of Engineers
In the first decades of the American Republic, river
and harbor bills met overwhelming resistance from the
executive branch, mainly because of concerns over con-
stitutionality, one more issue that reverberates through
much of America’s history. The specific points usually
centered on presumed lack of constitutional authority to
construct works of mainly local and even private bene-
fit or works on rivers that were not clearly navigable.
Pre-Civil War Presidents either practiced an inconsistent
policy towards public works or became adamant oppo-
nents. Thomas Jefferson objected to federal involvement
because it would empower the government at the expense
of the common man, burden the taxpayer, lead to projects
benefiting one location at the cost of another, and would
enrich men at public expense. James Madison, who had
been an early internal improvements advocate, on the
evening before his departure from the White House vetoed
the so-called Bonus Bill that would have provided funds
for public works, declaring that the Constitution did not
give Congress the power to appropriate money for or
to construct public works without an ‘‘inadmissible lat-
itude of construction.’’ James Monroe at first thought that
Congress could appropriate funds for public works but
agreed with Madison that the federal government had no
authority to construct the projects. Later, he determined
that Congress might construct public works after all but
only for those projects that were ‘‘national not state, gen-
eral not local,’’ a clarification that left the proverbial barn
door open for defining local and general.
Andrew Jackson saw himself as a friend of internal
improvements, but he feared the extension of federal
power, sought a clarifying amendment on the appropriate
national role in internal improvements, and admitted,
like Monroe, that, while the federal government could
appropriate money for truly national projects, it could not
actually construct the projects itself. Strict constitutional
constructionist James K. Polk vetoed every rivers and
harbors bill sent to him. He even went to his office on
the last day of his administration armed with a veto
should Congress try to pass an internal improvements
bill at the last moment. Abraham Lincoln, a young
Whig congressman from Illinois, succinctly captured the
problem in his denunciation of Polk’s veto of the 1848
rivers and harbors act. ‘‘The just conclusion from all
this is that, if the nation refuses to make improvements
of the more general kind because their benefits might
be somewhat local, a state may, for the same reason,
refuse to make an improvement of a local kind because
its benefits may be somewhat general. A state may well
say to the nation, ‘If you will do nothing for me I will
This article is a US Government work and, as such, is in the
public domain in the United States of America.

do nothing for you.’ ’’ In the following decade, Franklin
Pierce vetoed five rivers and harbors bills on the grounds
of unconstitutionality. As Civil War erupted in the land,
the political and philosophical jousting over water projects
remained as short of resolution as ever.
Given the fears, hopes, and questions facing the early
American republic, it is little wonder that it saw no
successful implementation of coordinated public works
administration. Perhaps more surprising is that this
became a permanent condition in the United States.
Funding issues, sectional friction, and constitutional
questions invariably posed insurmountable barriers. Prior
to the Civil War, the federal government attempted twice
to develop and implement a national program of public
works. The first was the well-known Gallatin Plan. At
the request of Congress, Secretary of Treasury Albert
Gallatin proposed in 1808, an ambitious network of roads
and canals connecting the Eastern seaboard with the
interior and a coastwise water route to shorten distances
between major Atlantic seaboard cities. Gallatin argued
that the federal government should construct internal
improvements that provide ‘‘annual additional income
to the nation’’ but are beyond the capacity of private
entrepreneurs to build. His formulation harkens back to
Adam Smith’s The Wealth of Nations and anticipates the
term ‘‘National Economic Development ’’ that appeared
in twentieth century economic jargon. However, his effort
fell victim to lack of funds (both private and public), New
England opposition to the Jefferson Administration, and,
finally, growing preoccupation with real and apparent
British threats to the United States, which eventually
resulted in war. It is also of more than passing interest
that Gallatin himself agreed with President Jefferson
that his plan could never be efficiently realized without a
constitutional amendment.
The next great attempt occurred in 1824. President’s
Monroe’s vacillation, the growing clout of new states
interested in waterborne commerce, and a favorable
Supreme Court ruling (Gibbons v. Ogden) that sanctioned
federal control over interstate commerce, including rivers,
based on the Commerce Clause of the Constitution,
allowed passage of the General Survey Act in 1824,
after weeks of acrimonious debate. The act carried largely
because of support from the Middle Atlantic states (except
Delaware) and the new states west of the Appalachians.
It authorized the President to use the Army Engineers
to survey (not build) roads and canals (not rivers) that
may be deemed ‘‘of national importance in a commercial or
military point of view, or necessary to the transportation
of the public mail.’’
Once the bill passed, Secretary of War John C.
Calhoun organized a Board of Engineers for Internal
Improvements to determine which routes should be
surveyed among the scores suggested. Like Gallatin’s
plan, this program could have become the beginning
of a great nationwide, coordinated system of internal
improvements. Instead, once projects were surveyed, they
became subject to the same parochialism in Congress
that had doomed earlier, similar ideas, and congressmen
continued to introduce pet projects for funding despite
a contrary recommendation from the army engineers
ECONOMIC VALUE OF WATER: ESTIMATION 605
or the absence of a survey altogether. Its planning role
severely diminished, the Board of Engineers languished,
and a reorganization of the Corps of Engineers in 1830
provided an excuse for its abolishment. Six years later,
Congress repealed the General Survey Act, partially a
response to the legislature’s own abuse of the act, using
Army Engineers to survey potential projects of clear local
and even private interest. Thus began a contest between
rational administration and congressional politics that has
remained unresolved and contentious to the present.
This article is based on Martin Reuss, ‘‘The Develop-
ment of American Water Resources, Planners, Politicians,
and Constitutional Interpretation,’’ in Paul Slack and
Julie Trottier, eds., Managing Water Resources, Past and
Present: The Twelfth Annual Linacre Lectures. Oxford
University Press, 2004. Forthcoming. Used by permission
of Oxford University Press.
The Development of American Water Resources:
Planners, Politicians, and Constitutional Interpretation.
The Constitution and Early Attempts at Rational
Water Planning.
The Expansion of Federal Water Projects.
ECONOMIC VALUE OF WATER: ESTIMATION
JORGE RAMÍREZ-VALLEJO
Harvard University
Cambridge, Massachusetts
‘‘Water has an economic value in all its competing uses
and should be recognized as an economic good.’’ The Dublin
Statement, 1993.
MOTIVATION FOR VALUING WATER
The global awareness of the vital role water plays in
sustainable national development is increasing. Water is
vital for sustaining life on the earth. It is crucial for
economic and social development, including energy pro-
duction, agriculture, and domestic and industrial water
supplies. Therefore, each unit of water should be used
efficiently, equitably, and soundly. The economic value
that water generates should be given due attention,
when apportioning scarce water resources among com-
peting uses.
Water is often regarded as a naturally occurring,
freely available commodity. However, its supply, especially
in an unpolluted state, is often limited compared to
the demands placed upon it. Hence, water is both
a constraint on and an essential input of economic
activity, and decisions are required to allocate it among
competing uses. Considerable resources are committed
to delivering required standards of water services in
adequate quantities and qualities. In addition, water-
related environmental qualities, such as those associated
with wetland regimes, are recognized as valuable to
society. These characteristics of water imply that it can
be regarded as an economic commodity—an economic
good—whose use can be guided by economic principles (1).
606 ECONOMIC VALUE OF WATER: ESTIMATION
Water, as other resources, has value whenever users
are willing to pay a price for it rather than do without.
The economic value and economic benefit of water can be
considered synonymous. The benefits from this resource
are derived from various uses. First, we find benefits of
water from personal drinking, cooking, and sanitation,
and from that those contribute to productive activities
on farms and in businesses and industries. These uses
are called consumptive uses. Second, there are in-stream
water benefits from other uses such as hydroelectric power
generation and waterways transportation. These uses are
called nonconsumptive uses. The third type of value of
water comes from the economic benefits that water has
in recreation, aesthetics, and fish and wildlife habitat.
As income and leisure time grow, these benefits are
becoming more and more important. Fourth, there are
the economic benefits of waste disposal using water as a
sink for carrying away a wide range of residuals from the
processes of human production and consumption. Water
is used then to dilute them and in some instances to
transform them into less undesirable form. Fifth, we find
the dis-values of water that come from floods and negative
water quality impacts. Finally, we have the nonuse value
of water that comes from people who are willing to pay
for environmental services that might neither be used nor
experienced in the future.
Economic valuation is a process of expressing pref-
erences in a money metric. But, why bother valuing
water anyway? This is the obvious question that comes
to mind when approaching this subject. The key answer
to this question is simple but fundamental: for the future
well-being of humanity. The longer we ignore or distort
water’s value, the more overused and misallocated the
resource becomes. Without price signals or other indica-
tors of value to help guide policy, we tend to manage the
resource blindly.
Estimates of the economic value are key for manage-
ment decisions on allocation. Economic valuation is also
important because it aids in determining if people want
proposed projects and helps in estimating the degree to
which they are willing to pay for benefits. When public
budgets are constrained, this information becomes impor-
tant for making sound investment decisions. For policy
decisions, water values are also important to set the levels
that the various users should pay for this resource.
Estimating the economic value of water helps in
decisions for optimal allocation of the resource among
various uses. Limited supply and increasing demand
for water are common around the world. Under these
circumstances, the economic value of water for each of its
competing uses helps the decision maker decide how much
water to allocate to each sector or use, and also helps
determine the use of water in time, how much to use now
and how much to save for the future.
In 1992, experts from 100 countries, intergovernmental
organizations, and NGOs gathered in Dublin for the
International Conference on Water and the Environment.
The conference influenced preparations for the UN
Conference on Environment and Development, held later
that year in Rio de Janeiro.1 Its brief concluding
statement remains an authoritative affirmation of the
water policy agenda; it contained four ‘‘guiding principles.’’
The most important principle from this statement that has
generated a great deal of controversy has to do with the
consideration that water has an economic value in all its
competing uses and should be recognized as an economic
good. However, the statement recognizes the basic right
of all human beings to have access to clean water and
sanitation at an affordable price (see Appendix 1).
ECONOMIC CONCEPTS
To understand better the methodologies for estimating the
economic value of water described below, it is important
to review two key economic concepts (2).
The Demand Curve and the Price Elasticity of Water Demand
When we talk about willingness to pay for value, we mean
the maximum amount that a individual is willing to pay for
a product. This is the sum of the product price (P) and the
consumer surplus. If we wish to estimate the maximum
that the individual is willing to pay for a proposed change,
we should estimate the demand curve.
A consumer’s willingness to pay for an increment of
supply is the corresponding area under the demand curve
(price vs. quantity), although the amount the consumer
actually pays for the increment is the water price times
the quantity. The difference between these two values is
what it is called the consumer surplus (the benefit for the
consumer that he/she did not pay for it).
Assuming that the price elasticity of demand (ε) is
known, is constant over the relevant range, and is not
equal to one, and second, that the relevant initial price P1
and quantity Q1 can be specified, then the area under the
curve (i.e., the desired measure of value—denoted V) for
a change in quantity Q1 to Q2 is given by
1/ε 1/ε
V = [(P1 Q1 1/ε )/(1 − 1/ε)][(Q1 /Q1 ) − (Q2 /Q2 )]
This expression represents the value of an increment of
quantity Q to the final user. This incremental value will
provide a measure of benefits to compare with costs in an
investment project evaluation.
1
Awareness of the seriousness of water problems has evolved
gradually over the years, and important recommendations have
been formulated since the United Nations Water Conference
in Mar del Plata (Argentina) in 1977. Other events that
have focused on water issues include the 1992 International
Conference on Water and the Environment, convened by the
World Meteorological Organization (WMO) in Dublin, Ireland,
and the 1992 United Nations Conference on Environment and
Development (UNCED) in Rio de Janeiro. The Ministerial
Conference on Drinking Water and Environmental Sanitation
held in Noordwijk in March 1994 adopted an action program.
In 1994, the United Nations Commission on Sustainable
Development requested a comprehensive assessment of the
world’s freshwater resources, including projections of future needs
the results of the study were considered by the 1997 special session
of the UN General Assembly reviewing the implementation of
Agenda 21.

Estimates of price elasticities of water demand have
shown that water use is consistently price-inelastic when
there is no substitute, whereas residual use (i.e., watering
the garden) is more elastic and differs significantly across
geographical regions and between climate seasons (i.e.,
winter–summer, rainy–dry) (3).
The price responsiveness of water demand reflects the
heterogeneity of demand components. A small portion of
the demand is for uses for which there are no substitutes
and that are of great necessity to the consumer; other uses
are of lesser value and have ready substitutes.
Treatment of Time
The rate of conversion of value between time periods is
called the rate of time of preference. Defining the best
long-term management of the resource requires balancing
the needs of the present and those of the future. Using a
discount rate that adequately considers the value of goods
or services for future generations creates this balance. A
high discount rate implicitly places a low value on water’s
value to future generations. A low discount rate implies
the opposite.
Another issue related to time is the difference between
long-run and short-run values of water. The distinction
between these two relates to the fixity of certain inputs
necessary to make water available for consumption, such
as supply infrastructure. Other things remaining constant,
we would expect that values estimated for short-run
contexts would be larger than values for the long run. Price
elasticity of demand is less in the short run than in the long
run when adjustments to shortages and infrastructure can
be made. Accordingly, willingness to pay in the short run
is usually higher than in the long run.
ESTIMATION METHODOLOGIES
The principles for valuing natural assets such as energy
and mineral deposits, forests, and aquifers were set forth
more than 60 years ago, but the principles for measuring
consumptive value of water for household use were set
forth a century ago.
Water services in many situations are difficult to
value because much of the information needed for
valuation is not readily available. When markets exist,
they automatically generate useful information, but
unfortunately, most of the services provided by water
are not traded on markets. Therefore, one has to rely on
techniques to value nonmarket goods.
Economists have developed indirect methods (e.g.,
hedonic price models, travel cost method, averting
behavior), which infer values from other behaviors
associated with the good. The strengths of indirect
methods come from the fact that they rely on observed
behaviors of producers and consumers. Examples are the
market price as result of human behavior (demand and
supply) as a function of the quality of the water nearby.
Recent summaries of indirect approaches can be found in
Braden and Kolstad (4), Mendelsohn and Markstrom (5),
Smith (6,7), and Freeman (8).
The valuation method must be well matched to the
context and the water function or service of interest.
ECONOMIC VALUE OF WATER: ESTIMATION 607
It is hard to generalize in the abstract about the
validity and reliability of specific valuation approaches.
The validity of the methodology used depends on the
valuation context and the type of service that are
of interest. Different approaches are needed to value
different services. A valuation framework takes into
account how time, institutions, water quality and quantity,
hydrologic factors, and services interact to affect the
resource’s value.
One of the major challenges in valuing water resources
is how to integrate the hydrologic and physical components
into a valuation scheme. Valuation of the extractive
and onsite services of water requires understanding the
hydrology and ecology of the water source. Hydrologic
information includes variables such as rainfall, runoff,
infiltration, water balance, depth to groundwater, aquifer
characteristics, and water quality.
DIRECT VALUATION APPROACHES
Market Prices
When market prices exist, the equilibrium price represents
the willingness of potential buyers to pay for the good
or service of water. In other words, when water has a
market and it can be bought and sold, then the economic
value of water is its price. However, in some cases due
to government intervention such as subsidies or market
failures, these prices are distorted and need to be adjusted
to obtain the real economic value of the resource.
Transactions between a buyer and a seller are increas-
ingly observed when water rights are defined and other
conditions exist that make the water market function.
Easter and Hearne (9) and Rosegrant and Binswanger (10)
describe examples of water rights markets. If there is a
market for perpetual water rights, the value of water can
be estimated by using the perpetuity formula V = A/r
where r is the interest rate (discount rate), V the value of
the perpetual water right, and A the value of water.
Contingent Valuation Method
Economic value is not a fixed, inherent attribute of a good
or service but rather depends on time, circumstances, and
individual preferences. One technique that attempts to
measure total value is the contingent valuation method
(CVM). CVM values are elicited directly from individuals
via interviews or questionnaires in the form of statements
of maximum willingness to pay (WTP) or minimum
willingness to accept compensation (WTA) for hypothetical
changes in environmental goods, such as water quantity
or quality. However, there are numerous methodological
controversies associated with the application of CVM,
including the way the hypothetical water change (in
quantity or quality) is to be specified, the elicitation format
for asking valuation questions, the appropriate measure
to be elicited, and various types of response biases. CVM
provides reliable estimates of value when an individual
has a close connection to the resource being valued.
This methodology is used when no value measures can
be derived from observing individual choices through a
market, such as water quality issues. This approach can
608 ECONOMIC VALUE OF WATER: ESTIMATION
potentially measure the economic benefits (or damages) of
a wide assortment of beneficial (or adverse) effects in a
way that is consistent with economic theory (11).
The CVM method is an ex-ante technique that can
be used to measure the value of water without the need
for observable behavior (data). In addition, this is the
only method (direct or indirect) that measures existent or
bequest values (use and nonuse values). It is an expensive
method because of the need to carry out a survey, and there
are concerns about its use for nonuse value applications.
Using this approach, respondents of surveys are offered
conditions simulating a hypothetical market in which they
are asked to express willingness to pay for existing or
potential environmental conditions not registered on any
market. The contingent valuation method (CVM) derives
estimates for social benefits attributable to water, when
considered a public or nonmarket good. This method is
used frequently for projects or programs that affect water
quality. The procedural steps for applying the CVM are as
follows (12):
The first component describes the setting under which
the respondent is to imagine herself/himself. Second are
the choice questions, which will be used to infer values
of the amenity or policy change. The third element asks
questions about the respondent to identify demand shift
variables such as age, education, income, and gender.
For the forms of questions used and the way to design
the survey instrument in CVM studies, see Mitchell and
Carson (11) and Cummings et al. (12).
The CVM approach, given its hypothetical attributes,
is susceptible to various sources of errors or biases. Some
of them are (1) the questionnaire scenario can encourage
strategic behavior, (2) the compliance bias or a tendency
to fit the responses to the perceived preferences of the
interviewer, (3) the possibility that the scenario provides
implied values cues to the respondent, and (4) scenario
misspecification when the respondent fails to understand
the scenario intended by the researcher. These biases
demand a careful questionnaire design.
The willingness to pay is estimated by using the
following expression:
WTP = f (Qj , Pj , SPj /Ij , Hj )
where Qj defines a specific change in water quality,
Pj represents the change in price of water from primary
supplies, SPj represents the change in price of substitute
sources of water, Ij represents household income for
individual j net of taxes, and Hj represents various
nonincome characteristics of individual j’s household.
INDIRECT VALUATION APPROACHES
Derived Demand
Water demand (households, farms, etc.) tends to be very
site-specific and is influenced by a range of natural
and socioeconomic factors. The demand relationship is
represented algebraically by the familiar function,
Qw = Qw (Pw , Pa , P; Y; Z)
where Qw refers to the individual’s level of water
consumption in a specified time period, Pw refers to the
price of water, Pa denotes the price of an alternative water
source, P refers to an average price index representing all
other goods and services, Y is the consumer’s income, and
Z is a vector representing other factors such as climate
and consumer preferences (13). This demand curve is
usually estimated by using cross-sectional observations
(data taken for the same time period) from a sample of
water service agencies which exhibit a range of water rates
and often variation in other factors influencing demand,
such as income, rainfall, and temperature. The general
approach is to apply regression analysis to estimate the
parameters of the demand equation, parameters that allow
us to estimate the price elasticity of demand.
The gross value of water is derived by integrating (area
under the curve) the inverse of the econometrically derived
demand function, P(Qw ), over the appropriate increment
in quantity. If the demand function was estimated for
tap water and one is looking for the consumer demand
function for raw water for intersectional allocation, then
an additional step is necessary. The costs of capturing,
transporting, treating, and storing water must be deducted
from the estimated willingness to pay for tap water. When
tap water (domestic) is priced to recover fully the costs
of supplying it, the average revenue can be subtracted
from the value of water estimated before. See Booker and
Young (14) for an application of this point.
The derived demand approach is usually used to
estimate the value of water in the municipal environment.
Its main advantages are that it is based on observable
data from firms/households using water and is relatively
inexpensive. However, using this approach, it is not
possible to measure the nonuse value of water and,
sometimes, understates the willingness to pay for the
resource (2).
The approach described above does not capture the
benefit of loss in value due to the reliability dimension (the
probability of having an interrupted service). Some other
methodologies such as the contingent valuation method
have been used in the past to estimate the reliability
attribute of water supply. See, for example, Carson (15),
Altaf et al. (16), and Howe and Smith (17).
Valuing Water as an Intermediate Good
Water is commonly used for producing goods; it is not a
final product itself. Agricultural irrigation, industry, and
hydroelectric or thermal power generation are examples
of these uses. For intermediate goods, the theory of
producer’s demand for inputs provides the conceptual
basis for valuing the economic value of water (18). The
producer’s demand for an input is its value as a marginal
product (VMP); therefore measuring the economic value
of water requires an approximation of the VMP. Three
methods of valuing water as an intermediate good are in
common use: the residual approach, the hedonic approach,
and the alternative cost approach.
The Residual Approach. The ‘‘residual’’ method is the
most frequently used approach for estimating the price of
intermediate goods, particularly of irrigation water. Under

this method, the incremental contribution of each input
in the production process is determined. If appropriate
prices can be assigned by market forces to all inputs but
one, water, for example, the remainder of total value of
product is imputed to the remaining residual input. In
algebraic terms,
Pw = [TVPy − [(Pk Qk ) + (Pl Ql ) + (PR QR )]]/Qw
where Pw and Qw are the price and quantity of water,
respectively, TVPy is the total value product, and the
parenthesis terms are the price multiplied by the quantity
of each of the other inputs in the production process
(K, L, R).
This technique is extremely sensitive to small varia-
tions in the assumptions about the nature of the production
function and about prices. Biases can be introduced by any
of several types of errors and omissions. Therefore, this
approach is most suitable when water contributes signifi-
cantly to the value of the output (agricultural production,
hydropower generation).
Sometimes, mathematical programming (optimization)
models are used to estimate the value of water using the
residual approach. These models are built to obtain the
optimum allocation of water and other resources (inputs)
so as to maximize profits, subject to constraints on resource
availability and institutional capacity (19). Mathematical
programming is advantageous when a wide range of
technological options is to be studied.
The Alternative Cost Approach. This method is also
appropriate for measuring the value of water when water
is an intermediate good. The technique is attractive under
the assumption that, if a given project of specified output
costs less than the next best public or private project
which can achieve the same output, then the cost of
the next best project can be assigned as the benefit
to the public project in consideration. This approach
has been employed for valuing of water in municipal,
industrial, hydroelectric, and thermal electric power
projects. Steiner (20) remains the primary authority on
this approach. See also Herfindahl and Kneese (21).
Averting Behavior Model
Using this method, water value is estimated by the
actions taken to avoid or reduce damage from exposure
to water contaminants, such as changing daily routines to
avoid exposure. However, averting expenditures and true
reduction of pollution differ because such expenditures do
not measure all the costs related to pollution that affect the
consumer’s utility. Therefore, the ability of this valuation
approach to provide a lower bound to willingness to pay
depends on various assumptions. A list of these conditions
is explained in detailed in the literature (22).
The averting behavior technique is based on observable
data from actual behavior and choices and is relatively
inexpensive. It provides a lower bound of the willingness to
pay if certain assumptions are met. However, its estimates
do not capture full losses from environmental degradation,
and several key assumptions must be met to obtain reliable
estimates. It is usually used for expost analysis and is
ECONOMIC VALUE OF WATER: ESTIMATION 609
limited to current situations; as in the derived-demand
approach, it does not estimate nonuse values.
Hedonic Price Model
This pricing method is based on the premise that people
value a good because of the attributes of that good rather
than the good itself. These models encompass both land
(housing) price models and wage models that account for
variations due to environmental attributes. Therefore, by
regressing housing prices to the attributes of a house
and site, including environmental characteristics, one
obtains the marginal value of the characteristic q. In
the estimating equation,
P = F(S, N, Q) + ε
P is the sale price of the asset, S is a vector of structural
characteristics, N is a vector of neighborhood charac-
teristics, Q represents the environmental attribute(s) of
interest, F is a function to be estimated by multiple-
regression methods, and ε is an error term. ∂P/∂Q is the
marginal value of the characteristic q or the amount of
value gained or lost due to a defined change in the envi-
ronment.
Estimating the economic value of environmental
resources by hedonic methods is quite difficult in practice,
and the technique is subject to serious limitations (8).
First, a large enough sample might be difficult to
obtain. Second, if water resources are already in public
ownership, market transactions may not be available.
Third, sometimes the effect of an environmental attribute
or characteristic of price may be small and hard to detect
statistically or to disentangle from the effects of all other
variables. See a detailed description and examples in
Palmquist (23) and McConnell (24).
Travel Cost Method
The travel cost is the most widely used example of the
observed indirect methods. It involves two steps: the first
is to estimate the individual recreationist’s demand for
the resource, and the second is to derive statistically the
relevant aggregate resource demand curve. Travel cost
methods encompass a variety of models, ranging from
the simple single-site travel cost model to regional and
generalized models that incorporate quality indexes and
account for substitution across sites. The basic premise
behind these models is that the travel cost incurred in
traveling to a site can be regarded as the price of access to
the site. Therefore, under some assumptions, it is possible
to derive the demand for visits to a site as a function of
the price of admission, which is set equivalent to the cost
of travel to the site.
This method is based on observable data from actual
behavior and choices and is relatively inexpensive.
However, sometimes is not easy to observe consumer
behavior regarding the choice of recreation sites, and it
is limited to the water uses that include travel such as
recreation. It does not measure nonuse values.
The major drawback is that sometimes it is difficult to
isolate the contribution of water to the attractiveness of a
610 ECONOMIC VALUE OF WATER: ESTIMATION
site. In other words, there are some other attributes that
contribute to the total site value and are difficult to isolate.
Another problem in using this approach is to decide what to
include when estimating the cost of travel (cost of gas, oil,
tires, etc), and whether or not the opportunity cost of the
recreationist’s time should be included in the estimate.
A detailed explanation of this approach and real world
examples are in Walsh (25), McConnell (24), Freeman (8),
and Fletcher et al. (26).
Benefit Transfer and Meta-Analysis
The process of benefit transfer consists of adapting
estimates relating to sites that have been studied to sites
lacking such studies. It is an approach that consists of
pooling data from already completed studies and then
applying multiple regression analysis using explanatory
variables that are site specific and methodology specific.
For a detailed description, see Walsh et al. (27). A similar
approach but using research findings is called meta-
analysis; it has been used for estimating the benefits of
natural resources. See, for example, Smith and Kaoru (28).
AN APPLICATION OF VALUATION
Quality of Water
Valuing the quality of water usually requires establishing
its relationship to the health conditions of its users. In the
past, various methodologies have been used to measure
the economic value of changes in health benefits or risks
from a change in water quality levels. For this purpose,
they have used various tools or techniques such as water
demand functions, averting or defensive expenditures,
changes in production costs, the hedonic price method,
or stated preference methods such as the contingent
valuation method or conjoint analysis (29).
Another service supported by water quality is the
provision of drinking water for livestock and irrigation.
A change in the quality of water used for these purposes
may result in a change in the value of livestock or crops,
a change in agricultural production costs, or a change in
human health or health risks by increasing or decreasing
the trace chemicals found on plants ingested by people.
The change in the value of crops can be estimated using a
market demand function. The change in production costs
can be estimated using cost functions. For changes in
human health and health risks, one could use the damage
avoided approach and stated preference methods. Similar
methods should be used for the eventual changes in the
value of crops from a commercial fish harvest, commercial
hunting harvest, or commercial plant harvest.
A change in surface or groundwater quality can
also have an impact on the quantity or quality of
recreational services such as fishing, hunting, or just
enjoying the scenery. Potential techniques for valuing
these effects include the travel cost method and stated
preference methods.
On the other hand, the effects of changes in nonuse
or passive use services are some of the most difficult
effect to value monetarily. A change in nonuse or
passive use services results in a direct change in
personal utility or satisfaction that may be reflected
in the decision on consumption of water. The most
viable techniques for measuring these effects are stated
preference methods (11,15).
A comprehensive, rigorous and useful discussion
of the theory and practice of valuing environmental
resources is given in Freeman (8). See also Anderson and
Bishop (30), Bentkover et al (31), Johansson (32), Braden
and Kolstad (4), and Pearce and Warford (33).
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C.D. Kolstad (Eds.). Elsevier Science Publishers, Amsterdam.
24. McConnell, K.E. (1993). Indirect Methods of Natural
Resource Damage Assessment. In: Valuing Natural Assets:
The Economics of Natural Resource Damage Assessment.
R.J. Kopp and V.K. Smith (Eds.). Resources for the Future,
Washington, DC.
25. Walsh, R.G. (1986). Recreation Economic Decisions: Compar-
ing Benefits and Costs. Vbenture Publishing, State College,
PA.
26. Fletcher, J.J., Adamovicz, V.L., and Graham-Tomasi, T.
(1990). The travel cost model of recreational demand:
theoretical and empirical issues. Leisure Sci. 12: 119–147.
27. Walsh, R.G., Johnson, D.M., and McKean, J.R. (1992). Benefit
Transfer of Outdoor Recreation Demand Studies. 1968–1988.
Water Resources Research Vol. 28.
28. Smith, V.K. and Kaoru, Y. (1990). Signals or noise?
Explaining the variation in recreational benefit estimates.
Am. J. Agric. Econ. 71(2): 419–433.
29. Bergwstrom, J.C., Boyle, K.J., and Poe, G.L. (2001). The
Economic Value of Water Quality, New Horizons in Envi-
ronmental Economics. Edward Elgar, Northampton, MA.
30. Anderson, G.D. and Bishop, R.C. (1986). The valuation
problem. In: Natural Resources Economics: Policy Problems
and Contemporary Analysis. D.W. Bromley (Ed.). Kluwer
Nijhoff, Boston, pp. 89–137.
31. Bentkover, J.D., Covello, V.T., and Munpower, J. (Eds.).
(1999). Benefit Assessment: The State of the Art. Reidel,
Dordrecht, the Netherlands.
32. Johansson, P-O. (1987). The Economic Theory and Measure-
ment of Environmental Benefits. Cambridge University Press,
Cambridge, UK.
33. Pearce, D.W. and Warford, J.J. (1993). World Without
End: Economics, Environment and Sustainable Development.
Oxford University Press (for the World Bank), New York.
34. Young, R.A. (1996). Measuring Economic Benefits for Water
Investment and Policies. World Bank Technical Report No
33B, Washington, DC.
APPENDIX 1. THE DUBLIN STATEMENT
In commending this Dublin Statement to the world
leaders assembled at the United Nations Conference
on Environment and Development (UNCED) in Rio de
Janeiro in June 1992, the Conference participants urge all
governments to study carefully the specific activities and
ECONOMIC VALUE OF WATER: ESTIMATION 611
means of implementation recommended in the Conference
Report, and to translate those recommendations into
urgent action programmes for water and sustainable
development.
Guiding Principles
Concerted action is needed to reverse the present
trends of overconsumption, pollution, and rising threats
from drought and floods. The Conference Report sets
out recommendations for action at local, national and
international levels, based on four guiding principles.
Principle No. 1. Fresh water is a finite and vulnerable
resource, essential to sustain life, development and the
environment
Since water sustains life, effective management of
water resources demands a holistic approach, linking
social and economic development with protection of
natural ecosystems. Effective management links land
and water uses across the whole of a catchment area
or groundwater aquifer.
Principle No. 2. Water development and management
should be based on a participatory approach, involving
users, planners and policy-makers at all levels
The participatory approach involves raising awareness of
the importance of water among policy-makers and the
general public. It means that decisions are taken at the
lowest appropriate level, with full public consultation and
involvement of users in the planning and implementation
of water projects.
Principle No. 3. Women play a central part in the provision,
management and safeguarding of water
This pivotal role of women as providers and users of
water and guardians of the living environment has
seldom been reflected in institutional arrangements for
the development and management of water resources.
Acceptance and implementation of this principle requires
positive policies to address women’s specific needs and to
equip and empower women to participate at all levels in
water resources programmes, including decision-making
and implementation, in ways defined by them.
Principle No. 4. Water has an economic value in all its
competing uses and should be recognized as an
economic good
Within this principle, it is vital to recognize first the
basic right of all human beings to have access to clean
water and sanitation at an affordable price. Past failure to
recognize the economic value of water has led to wasteful
and environmentally damaging uses of the resource.
Managing water as an economic good is an important way
of achieving efficient and equitable use, and of encouraging
conservation and protection of water resources.
Acknowledgments
It must be acknowledged that this chapter owes a great deal in
both substance and form to the paper written by Robert A Young
612 WATER SUPPLY PLANNING—FEDERAL
in 1996 for the World Bank based on the pioneering work by him
and S. Lee Gray in 1972 (1,34).
WATER SUPPLY PLANNING—FEDERAL
DAVID L. FELDMAN
University of Tennessee
Knoxville, Tennessee
The U.S. government has been engaged in water supply
planning for domestic, agricultural, commercial, and
industrial needs from its inception. Planning was initially
undertaken for inland navigation and flood control. Later,
primacy was given to irrigation, municipal needs, and
hydroelectricity. The Army Corps of Engineers, the largest
and most important federal water supply planning entity,
was initially given responsibility for all these efforts. In
1902, the Bureau of Reclamation (BOR) was established
and given principal responsibility for water supply projects
in the West.
GENERAL PLANNING ISSUES
Federal water supply planning has been characterized by
recurring policy debates on four issues:
• the value of structural measures (e.g., dams,
impoundments) versus nonstructural measures such
as conservation and demand-side management;
• the primacy to be accorded the philosophies and
missions of competing agencies (e.g., the Corps, BOR)
in the planning process;
• the advantages of comprehensive, conjoint coordina-
tion by a single entity (e.g., Interior Department,
Water Resources Council), facilitated by state cost-
sharing; and
• the appropriate role of public participation, par-
ticularly inclusion of environmental NGOs in plan
formulation.
These issues have frequently arisen in discussions
over specific plans. In the 1940s, for example, the
Pick–Sloan Missouri River project, one of the largest
federal water supply planning efforts, was conceived as
a compromise between the Corps and BOR, which shared
responsibility for water supply in the upper Missouri basin
though they had different priorities. The BOR envisioned
irrigation as the primary objective of main-stem dam
construction, and the Corps gave primacy to flood control
and hydropower. When these agencies failed to reconcile
priorities, Congress opted to allow each to develop separate
plans which would later be integrated by a series of review
boards charged with managing and overseeing reservoir
operations (1).
HISTORY OF FEDERAL WATER SUPPLY
PLANNING EFFORTS
For much of the nineteenth century, water supply planning
meant the development by states and communities of
engineering-based solutions to meet specific stakeholder
objectives such as flood control, municipal supply,
or water treatment (2). During the twentieth century
planning embraced ‘‘multiple objectives’’ undertaken by
all levels of government. It is now generally conceived
as a comprehensive effort to harmonize environmental,
economic, financial, and other concerns (3).
Five distinct periods in the evolution of federal water
supply planning are discernible: (1) a formative period con-
sisting of federal intervention in water supply in response
to specific regional needs; (2) a federal–state cooperative
planning era, following the Civil War, whose focus was
mostly navigational improvements; (3) a ‘‘multiprogram’’
era, beginning in the 1930s, characterized by establish-
ment of national priorities; (4) an effort to ‘‘federalize’’
water supply planning through greater presidential-level
coordination; and (5) a new federal–state partnership cou-
pled with greater sensitivity to environmental protection
and restoration needs.
Formative Developments
The earliest federal water supply planning efforts
coincided with exploratory surveys of the intermountain
West. Led in many cases by Army engineers, one of these
expeditions was intended to identify and trace the origins
and suitability for development of water supply sources.
The journeys of Lewis and Clark (1804–05) and Zebulon
Pike (1806–07) in the upper Missouri and Arkansas River
basins, respectively, are the best known of these; Stephen
H. Long’s Central Rocky Mountain-Yellowstone expedition
(1819–20) also surveyed regional water resources.
In 1824, the Corps was officially designated as the
steward of the nation’s water resources. Between this time
and the Civil War, the Corps identified mill sites and needs
for navigational improvements and engaged in channel
widening and other flood hazard mitigation activities (4,5).
These efforts generally produced site-specific solutions
to local problems. Despite fierce engineering debates,
particularly over proposals to harness the Mississippi
River for navigation and flood prevention (6), they failed
to set broad, consistent development priorities.
The Advent of Federal–State Cooperative Planning
The origins of a more comprehensive approach to water
supply planning may be traced to 1879, when explorer
and geographer John Wesley Powell decried the system
of Western water law, charging that by encouraging the
first users of a river to lay claim to its entire flow (the
law of prior appropriation), harm is imposed on other
users and the in-stream environment. As first director
of the U.S. Geological Survey, Powell proposed dividing
the West’s arid lands into irrigation districts where each
farmer was allotted 80 acres. These districts would be
drawn to conform to watershed topography, and drainage
basins would serve as state boundaries (7,8).
Powell’s proposals discouraged Western migration and
drew the ire of Congress and Western land development
interests. Ironically, this adverse reaction partly hastened
federal efforts to initiate large-scale reclamation projects
designed, principally, to support Western agriculture.

These projects would be justified (and subsidized) by
their flood control and hydroelectric power benefits—a
pattern which would characterize federal water supply
planning until the late twentieth century. In exchange for
broad political support, a reciprocal system of large-scale,
publically financed water projects was eventually provided
to Eastern states, principally for navigation, power, and
flood abatement (9–13).
In 1879 the Mississippi River Commission (MRC) was
also established, one of the first efforts to coordinate
federal–state water supply planning efforts in a sin-
gle basin. MRC was formed to deepen and widen the
river’s navigable channel and provide flood abatement.
Limited efforts to accelerate intergovernmental coordina-
tion efforts elsewhere occurred under the presidency of
Theodore Roosevelt who ‘‘was interested in securing state
cooperation and assistance in his program’’ to develop
comprehensive management of the nation’s rivers (14).
However, these efforts were largely unidirectional in their
scope: federal construction agencies that had greater fiscal
and technical resources continued to make most decisions.
Another goal of Teddy Roosevelt—reducing the power
of private interests to exploit the development of water
resources for their own gain—was not seriously tackled
until the 1930s.
Multiprogram Planning and the Great Depression
The first multipurpose federal water supply planning
efforts began when the Tennessee Valley Authority
(TVA) was established in 1933. The TVA was granted
broad power over a seven-state area to engage in
regional water supply planning, flood control, hydropower
production, navigation, and economic development. In
President Franklin Roosevelt’s words, it was to be a
‘‘. . . corporation clothed with the power of government
but possessed with the flexibility and initiative of private
enterprise’’ (15). Local entities were incorporated into its
economic development programs, and long-term political
alliances were built to ensure programmatic and funding
stability. Most importantly, TVA ‘‘supplanted’’ other
federal water resource agencies in its operating region,
and the absence of large private power companies also
helped it achieve comprehensive breadth (16).
The political conditions that permitted TVA to do all
these things were uniquely characteristic of American
politics during the 1930s. Some contend that these
conditions may no longer exist, exemplified by the fact
that later federal efforts to develop TVA-like entities in
the Missouri and Columbia basins failed to gain support
in Congress and among local elites (13,15). In short, no
TVA-like entity has been replicated anywhere else in the
United States.
In other regions, FDR’s Interior Secretary Harold Ickes
formed basin study groups with formal staffs, planning
funds, and some powers of program review during this
period. These groups had little formal access to Congress
and lacked the ability to initiate new projects or overrule
decisions of established water agencies regarding what
they often deemed as uneconomical or environmentally
damaging policies. They also had no control over planning
WATER SUPPLY PLANNING—FEDERAL 613
objectives, which continued to be left to the Corps and
other ‘‘construction agencies’’ (17).
A parallel, noteworthy development in this period
was the federal interstate compact. The Colorado River
Compact, one of the oldest of these, allocates both claimed
and unused waters in a seven-state basin based on future
needs and water-use priorities. The compact entered into
force in 1922, but Arizona, due to resentment over what it
considered to be an inequitable division of its share of the
lower Colorado, refused to ratify it until 1944. When it did
so, it tried to use its ratification to leverage federal funds to
build the long-coveted Central Arizona Project, designed
to divert Colorado River water to Phoenix, Tucson, and
surrounding rural communities via aqueduct (18–20).
Although interstate compacts vary in intent, scope of
activity, and structure, all derive their legal authority from
the compact clause of the U.S. Constitution (Art. I, Sec. 10,
clause 3) which mandates Congress’s consent when states
enter into binding agreements with one another. This
endows them with rights to embrace public as well as
private facilities and projects within their jurisdiction.
It also binds the actions of signatory states and federal
agencies and authorizes allocation of interstate waters in
accordance with the doctrine of equitable apportionment
(i.e., in ways that do not disturb or impair rights awarded
to parties under Supreme Court decree without their
consent). In effect, their decisions have the force of
national law.
During the 1960s, in response to deteriorating water
quality and droughts in the Northeast, compact commis-
sions were established for the Delaware (DRBC), Susque-
hanna (SRBC), and Potomac River (PRBC) basins. These
were empowered to allocate interstate waters (including
groundwater and interbasin diversions), regulate water
quality, and manage interstate bridges and ports. The
DRBC, as a forerunner of this model, included numerous
federal partners such as Interior Department and Corps
of Engineers officials (21,22).
Since 1997, most compacts have continued to function
without federal appropriations as a result of Congressional
adoption of Heritage Foundation recommendations which
urged that Congress ‘‘defund’’ programs whose benefits
were viewed as more regional than national in scope.
The DRBC and SRBC have sustained themselves without
federal appropriations, and Congress has not withdrawn
from any compact. Also in 1997, the DRBC’s Executive
Director advised officials of Alabama, Florida, and Georgia
during formulation of two new compacts in that region
(the ACF-ACT compacts), and the DRBC and SRBC
were explicitly adopted as models by these compacts’
framers (21).
‘‘Federalizing’’ Water Supply Planning: The Water Resources
Council and Other Efforts
In the early 1960s, Congress embarked on an effort to
provide greater coordination of water supply planning.
The Water Resources Council (WRC) was established
in 1961 to hasten a more holistic approach to planning
by encouraging interagency cooperation and integrating
water quality and quantity concerns. It was initially
614 WATER SUPPLY PLANNING—FEDERAL
composed of representatives from the Departments of
Agriculture, Army, Commerce, and Interior.
In 1965, WRC was empowered by the Water Resources
Planning Act (PL 89-80) to engage in comprehensive
water supply planning by ‘‘maintain(ing) a continuing
study of the nation’s water and related land resources
and to prepare periodic assessments to determine the
adequacy of these resources to meet present and future
requirements’’ (23). The Act encouraged states to establish
‘‘Title II’’ river basin commissions charged with integrating
and harmonizing state assessments of water supply
problems and encouraging regional supply planning.
These were staffed by state and federal representatives.
The WRC employed competitive planning grants to
states and river basin commissions for gathering basic
data on water; identifying problems; and developing long-
term (‘‘level B’’) plans for ‘‘comprehensive, coordinated
management of water resources.’’ The commissions also
tried to coordinate the efforts of the Corps of Engineers,
BOR, and other federal agencies to provide assistance
to states and communities in drawing up these plans.
The WRC conducted two national assessments in 1968
and 1978. Both comprehensively depicted the nation’s
current and projected water needs; analyzed water-
related problems from national, regional, and major river
basin vantage points; and provided a wealth of data
on water quality, quantity, and land use trends and
problems (23,24).
As long as the WRC’s efforts remained confined to
preparing broad sets of recommendations for others to
weigh and adopt, they generated little controversy and
even less public attention. In the mid-1970s, however,
WRC was charged by the Office of Management and
Budget with developing ‘‘principles and standards’’ to
be applied to evaluation of water projects, as well as
cost-share guidance. The WRC was also granted power
to discourage projects of dubious economic value or
potentially adverse environmental impact. Controversy
came to a head during the presidency of Jimmy
Carter (1977–1981) who actively sought to diminish
Congress’s tradition of ‘‘pork barrel’’ water projects,
charging that they were wasteful of public expenditures,
economically unjustifiable, and in many cases, ecologically
harmful. Criticism grew in Congress that WRC was
exercising an ‘‘anti-dam’’ agenda through budget-cutting
and impoundments to eliminate locally popular, necessary
projects (25).
As a result of these criticisms and its eventual demise
in 1981 under President Reagan, WRC is regarded
as a failure. Critics charge that WRC did not ensure
meaningful citizen participation at the inception of federal
agency planning; overcome disagreements among states,
communities, and other traditional beneficiaries of ‘‘pork-
barrel’’ projects; or overcome the perception that its
planning efforts were perceived as imposed from above.
Moreover, it failed to find ‘‘an appropriate ideological basis
for policy’’ (26,27).
Mention should also be made of the U.S. National
Water Commission (NWC, 1967–1973), which grew out
of controversies in the 1960s surrounding proposals
to dam the lower Colorado River. Its chief legacy
was the attempt to place fiscal discipline upon federal
water supply efforts and to identify ways to better
coordinate federal agency water supply planning and
pollution control activities (28,29). NWC did succeed
in placing species diversity, riverine protection, and
other environmental issues on a policy footing equal
to traditional economic development drivers of federal
water supply planning. Moreover, the NWC’s final report
provided a ‘‘penetrating critique of water resources
decision making’’ (29, pp. 4–24). Its recommendations to
improve groundwater management, liberalize in-stream
flow protection, urge greater wastewater reuse, and
increase agricultural water efficiency remain part of many
recent water planning efforts.
The ‘New’ Paradigm: Federal–State Partnership
and Environmental Sensitivity
Since the 1980s, a ‘‘new’’ paradigm for federal water
supply planning has evolved that is characterized
by greater stakeholder participation in formulating
policy alternatives; environmentally sound, socially just
water resources management; reliance upon drainage
basins as planning units; and greater state–federal cost
sharing (30). This paradigm, advocates believe, promotes
a management approach more accountable to varied
interests, amenable to ‘‘regionally and locally tailored
solutions’’ (29), and protective of fish and wildlife. Eroding
federal interest in water supply, exemplified by Congress’
1997 ‘zeroing-out’ of funding for river basin commissions
and a general decline in support for new water projects,
has helped legitimize this new paradigm (31–33).
In 1980, Congress passed the Pacific Northwest
Electric Power Planning and Conservation Act [16
U.S.C. § 839b(h)]. The Act’s purpose was to restore
salmon spawning runs on the Columbia and Snake
Rivers by making salmon a ‘‘coequal partner’’ with
hydroelectric power in the operation of the Columbia
Basin’s 150 + dams (34). The Act also established the
Northwest Power Planning Council (NPPC), a multistate,
multiagency partnership comprised of the Bonneville
Power Authority (BPA), the Pacific Northwest Electric
Power and Conservation Council, and governor-appointed
representatives from Washington, Oregon, Idaho, and
Montana. NPPC has encouraged cooperation among utility
systems, conservation and efficient power use, greater
involvement of state and local governments in regional
power planning, and oversight of electric power system
planning and regional fish and wildlife recovery. NPPC
is developing a long-range plan to ensure low-cost power
for the region while protecting and rebuilding fishery and
wildlife populations depleted by hydropower development.
Because NPPC represents a bold step toward adopting
this ‘‘new’’ paradigm, its efforts have been heralded as an
innovative means of bringing stakeholders together. Its
activities have even led to creation of a regional ‘‘water
budget’’ designed both to protect fisheries and provide for
other services (more than 4 million acre-feet for salmon,
seasonally allocated on the Columbia and Snake Rivers),
and the set aside of 44,000 river miles of prime fish and
wildlife habitat from new hydropower development.

Although it had an enormous effect on regional electric
policies and regional approaches to fish and wildlife
protection and restoration, NPPC has not prevented
several species of Snake River salmon from being listed
under the Endangered Species Act. By 1990, annual fish
runs had been reduced from an estimated 10–16 million
to fewer than 3 million, despite more than $100 million
in expenditures on environmental improvements at dams
and decreased hydropower production. By 1995, many
West Coast salmonid species had been driven to extinction,
and others remain at risk of extinction. Adding to its
problems, in 1994, the Ninth Circuit Court of Appeals
rejected NPPC’s initial Salmon Strategy and criticized the
council’s ‘‘sacrificing the Act’s fish and wildlife goals’’ (35,
p. 190). NPPC has promulgated a new plan to provide
for endangered salmon recovery as well as to ensure
protection of other fish species.
Although not formally a ‘‘compact,’’ NPPC does have
compact-like powers to develop plans and meld the
operations of state and federal water supply entities. The
various water budgets and operational and engineering
changes developed on the riverine system are products,
in part, of data management tools refined in the light of
experience. Eleven state and federal agencies, 13 Native
American tribes, eight utilities, and numerous fish, forest,
and environmental groups are among the stakeholders
involved in restoring the Columbia River system.
Despite its mixed record, NPPC has forced environmen-
tal issues onto the agenda of water and power agencies
in the Pacific Northwest. As one observer has stated, eco-
logical imperatives, aesthetics, and demands for equity
‘‘have given rise to a greater consciousness of the eth-
ical implications of water use’’ (36). Moreover, unlike
previous federal efforts, NPPC has encouraged extensive
public involvement and planning for long-term threats by
incorporating local community and tribal concerns (35,36).
Clearly, NPPC is a major departure from previous federal
water supply planning efforts. It may also be a window
into the future.
CONCLUSIONS: WHITHER FEDERAL WATER
SUPPLY PLANNING?
Federal water supply planning efforts began as attempts
to promote support for regional power, reclamation, or
flood control projects; or to thwart the influence of private
interests who wanted to develop such projects. For most of
their history, these efforts limited public involvement to a
‘‘consultative’’ role; failed to provide adequate interagency
coordination; and, sometimes fell short of being truly
comprehensive.
We now know that effective federal water supply plan-
ning requires the ability to overcome agency ‘‘turf wars’’
by pursuing objectives defined by regional stakehold-
ers; supplant authority vested in several agencies (e.g.,
TVA), and comprehensively manage several water sup-
ply needs simultaneously (e.g., DRBC and SRBC have
mandates over water quality and supply). The record of
federal planning further suggests that effective efforts
are those perceived as economical and efficient, and
thus able to generate public support for projects and
WATER SUPPLY PLANNING—FEDERAL 615
programs (37). Finally, they must encourage collabora-
tion among those stakeholders most directly affected by
water supply problems. Collaboration overcomes resis-
tance to change, facilitates new opportunities for funding,
and stimulates resilient policy ideas (38). Today, public
involvement is an essential part of all water supply plan-
ning efforts in the United States. As we enter a new
millennium, questions that remain to be answered include,
how do we determine the objectives of future plans, and
what should the federal role be in their implementation?
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32. Miller, K., Rhodes, S.L., and MacDonnell, L.J. (1996). Global
change in microcosm: the case of U.S. Water Institutions.
Policy Sci. 29: 271–290.
33. Cody, B.A. (1999). Western Water Resource Issues. A Congres-
sional Research Service Brief for Congress. Congressional
Research Service, Washington, DC, March 18.
34. Blumm, M. (1998). Columbia river basin. In: Waters and
Water Rights. Vol. 6. R.E. Beck (Ed.). Michie Publishing,
Charlottesville, VA.
35. Getches, D.H. (1998). Water in the Columbia river basin: from
a source of performence to an instrument for economic growth.
In: Traditional and Modern Approaches to the Environment
on the Pacific Rim: Tensions and Values. H. Coward (Ed.).
State University of New York Press, Albany, NY, pp.
177–193.
36. Volkman, J.M. (1996). A River in Common: The Columbia
River, the Salmon Ecosystem, and Water Quality. Western
Water Policy Review Advisory Commission, Denver, CO.
37. American Society of Civil Engineers. (1984). Environmental
Objectives in Water Resources Planning and Management.
Water Resources Planning and Management Division. ASCE,
New York.
38. Chrislip, D.D. and Larson, C.E. (1994). Collaborative Leader-
ship: How Citizens and Civic Leaders Can Make A Difference.
Jossey-Bass, San Francisco, CA.
FLOOD CONTROL ACT OF 1944
ARTHUR M. HOLST
Philadelphia Water Department
Philadelphia, Pennsylvania
The Flood Control Act of 1944, enacted on December 22
of that year, established federal policy regarding juris-
diction over rivers and other bodies of water, specifically
watersheds. The act states that all water-related construc-
tion and navigation projects will be approved only if they
substantially improve navigational capacity and do not
excessively interfere with standard water usage. The plan
was proposed to prevent flooding and to allow more irriga-
tion, easier navigation, increased river-related recreation,
and the production of hydroelectric power. The Army Corp
of Engineers was designated to oversee these tasks.
A major component of the Flood Control Act of 1944
is known as the Pick–Sloan plan. Named after its
two creators, Glenn Sloan and Lewis Pick, members
of the Army Corps of Engineers, this plan authorized
the construction of six dams in three states on the
Missouri River. The plan created the largest reservoir
in North America. Prior to the 1940s, national water
navigation and flood control projects were run by four
different agencies that had little or no communication
and planning among them: the Army Corps of Engineers,
the Federal Power Commission, the Reclamation Bureau,
and the Soil Conservation Service. As a result of massive
and catastrophic flooding that occurred in 1936, all this
changed. In March of that year, flooding killed 107 people
and caused $270,000,000 of damage. The United States
had never before had very many flood control projects;
after these floods, it became clear that this needed to
change. The federal government responded by passing the
1936 Flood Control Act and 8 years later, the Flood Control
Act of 1944.
The Flood Control Act has 15 sections. The first
section is composed of rules for water-related planning
submissions to Congress, specifically, that they must
not interfere with established water uses. These include
domestic and municipal use, as well as irrigation and
industrial uses. It also asserts the importance of state
involvement in projects and plans that will affect them, as
determined by the Chief Engineer of the Army Corps.
The second section explains that flood control includes
channel and drainage improvements. This section also
states that river improvement for flood control is under
the War Department (now the Department of Defense)
as directed by the Secretary of War (now the Secretary
of Defense), and supervised by the Chief Engineer of the
Army Corps. Watershed alteration, erosion prevention,

and water flow control projects, on the other hand, are
stated to be under the control of the Department of
Agriculture, as directed by the Secretary of Agriculture.
These jurisdictions are subject to change only by Acts
of Congress.
The third section deals with the 1936 Flood Control Act.
It says that section 3 of that Act still applies to all projects.
It also allows a 5-year period in which local interests
working on water-related projects can secure whatever
local cooperation the Secretary of War deems necessary.
Section 4 authorizes the Chief Engineer of the Army
Corps to operate and maintain reservoir facilities in the
United States. The Secretary of War is authorized to
lease reservoir land but must give preference to federal,
state, and local government. The Secretary must also
make reservoir areas available to the general public for
recreational purposes, as adjudged consistent with the
public interest.
Section 5 instructs the Secretary of War to deliver to the
Secretary of the Interior all energy produced at reservoirs
that is not required for their operation. The Secretary of
the Interior is instructed to dispense this energy to the
public at low rates and is allowed to build or acquire
transmission lines and other facilities with money from
Congress only if necessary.
The sixth section of the Act authorizes the Secretary of
War to sell surplus reservoir water for reasonable prices, so
long as this does not negatively affect standard water uses.
Section 7 instructs the Secretary of War to regulate
the usage of reservoir storage intended for navigation and
flood control. This section does not generally apply to the
Tennessee Valley Authority.
Section 8 states that the Secretary of War may, on
advisement of the Secretary of the Interior, allow the use
of water for irrigation. The Secretary of the Interior is then
authorized to construct and maintain whatever structures
are necessary for irrigation. However, the Secretary is
allowed to undertake such projects only after receiving
Congressional authorization. This section does not apply
to dams and reservoirs built for irrigation prior to 1944 by
the Army Corps of Engineers.
Section 9 of the Flood Control Act of 1944 refers to
specific flood control projects and allocates $200,000,000
for those projects; specifically, the Missouri River project.
The tenth section details many other projects which
are authorized by the Act and affect the following areas:
the Lake Champlain Basin, the Blackstone River Basin,
the Connecticut River Basin, the Thames River Basin,
the Housatonic River Basin, the Susquehanna River
Basin, the Roanoke River Basin, the Edisto River Basin,
the Savannah River Basin, the Mobile River Basin, the
Alabama-Coosa River Basin, the Lower Mississippi River,
the Red-Ouachita River Basin, the Arkansas River Basin,
the White River Basin, the Upper Mississippi River Basin,
the Red River of the North Basin, the Missouri River
Basin, the Ohio River Basin, the Great Lakes Basin, the
Colorado River Basin (Texas), the Brazos River Basin,
the Rio Grande Basin, the Great Salt Basin, the Colorado
River Basin, the San Diego River Basin, the Ventura River
Basin, the Santa Ana River Basin, the Los Angeles-San
Gabriel Basin and Ballona Creek, the Pajaro River Basin,
GREAT LAKES GOVERNORS’ AGREEMENT 617
the Sacramento-San Joaquin River Basin, the San Joaquin
River, the Napa River Basin, the Coquille River Basin,
the Nehalem River Basin, the Willamette River Basin,
the Columbia River Basin, the Willapa River Basin, the
Chehalis River Basin, and the Territory of Hawaii.
Section 11 lists many more areas for which the
Secretary of War is instructed to oversee preliminary
studies of flood control and other plans. These plans are
not to be undertaken until authorized by law.
Section 12 appropriates $950,000,000 for all of these
projects. It also appropriates $10,000,000 to the Depart-
ments of Agriculture and War for any preliminary studies
of flood control improvements, $1,500,000 to the Federal
Power Commission for these studies, and a $500,000 emer-
gency fund for emergency flood prevention.
Section 13 authorized various projects to reduce soil
erosion and to improve water flow and runoff in
these areas: the Los Angeles River Basin, the Santa
Ynez River Basin, the Trinity River Basin (Texas), the
Little Tallahatchie River Watershed, the Yazoo River
Watershed, the Coosa River Watershed, the Little Sioux
River Watershed, the Potomac River Watershed, the
Buffalo Creek Watershed, the Colorado River Watershed
(Texas), and the Washita River Watershed.
Section 14 of the Act deals with the balance of some
$10,000,000 appropriated by an earlier act. It is to be used
for the work detailed in section 13 of the Flood Control
Act of 1944, and no more than 20% is to be spent on any
one project.
The 15th and final section of the Act amends an earlier
act approved in 1938. It allows the Secretary of War
to undertake emergency measures to avert dangerous,
destructive, and/or fatal flooding, based on codicil that he
may not spend more than $100,000 in any fiscal year.
This Act permanently altered the manner in which
water issues are handled in the United States and
has saved billions of dollars in property damage by
averting flooding.
READING LIST
Flood Control Act of 1944.
http://lwas.fws.gov/lawsdigest/flood.html.
http://www.usace.army.mil/inet/usace-docs/eng-pamphlets/
ep870-1-29/c-6.pdf.
GREAT LAKES GOVERNORS’ AGREEMENT
FREDERIC LASSERRE
Laval University
Quebec City, Quebec, Canada
Several institutions govern the use of the Great Lakes
water and try to coordinate the actions undertaken by
national governments (the United States and Canada)
as well as state and provincial actions. Some of these
institutions are old; some are much more recent and stem
from political concerns regarding the quality of the water
618 GREAT LAKES GOVERNORS’ AGREEMENT
in the Great Lakes, as well as potential diversions that
would have taken large quantities out of the basin.
THE GREAT LAKES GOVERNANCE
The International Joint Commission (IJC) prevents and
resolves disputes between the United States of America
and Canada under the 1909 Boundary Waters Treaty
and ‘‘pursues the common good’’ of both countries as
an ‘‘independent and objective advisor’’ to the two
governments (1). Transportation was one of the main
concerns of water management at the time: there was
no water quantity problem, nor was there much talk
of large variations in Great Lakes levels that could
hamper human or industrial consumption. The negotiators
wanted to ensure that water would always be sufficient
to allow for the safe passage of ships through locks.
Article III of the Treaty states that ‘‘no further or other
uses or obstructions or diversions, whether temporary or
permanent, of boundary waters on either side of the line,
affecting the natural level or flow of boundary waters
on the other side of the line shall be made, except
by authority of the United States or the Dominion of
Canada within their respective jurisdictions, and with the
approval, as hereinafter provided, of a joint commission,
to be known as the International Joint Commission.’’ The
IJC is, therefore, as its name underlines, an international
institution between two sovereign States.
In particular, the Commission rules upon applications
for approval of projects affecting boundary or transbound-
ary waters and may regulate the operation of these
projects; it assists the two countries in protecting the
transboundary environment, including the implementa-
tion of the Great Lakes Water Quality Agreement (1972,
renewed in 1978) and improving transboundary air qual-
ity, and it alerts the governments to emerging issues along
the boundary that may give rise to bilateral disputes. The
IJC, in particular, in its Final Report on Protection of
the Waters of the Great Lakes (2000), recommended that
Canadian and U.S. federal, provincial, and state govern-
ments should not permit diversion of water from the Great
Lakes Basin unless the proponent can demonstrate that
the removal would not endanger the integrity of the Great
Lakes ecosystem (2).
The Great Lakes Commission (GLC) is the only regional
organization whose statutory mandate is to represent the
eight Great Lakes states on a variety of environmental
and economic issues. It was created in 1955 and was
granted Congressional consent in 1968. The Great Lakes
Commission is now a binational agency: its members
include the eight Great Lakes states—Illinois, Indiana,
Michigan, Minnesota, New York, Ohio, Pennsylvania, and
Wisconsin; the Canadian provinces of Ontario and Québec
have had associate member status since 1999.
The Commission is dedicated to managing the water-
body of the Great Lakes: it promotes the orderly, inte-
grated and comprehensive development, use, and con-
servation of the water and related natural resources of
the Great Lakes Basin and St. Lawrence River. Each
jurisdiction appoints a delegation of three to five mem-
bers comprised of senior agency officials, legislators, or
appointees of the governor or premier.
The Commission works actively at the member states’
civil servant level. It is responsible for sharing information
among members, coordinating state and provincial
positions on issues of regional concern, and advocating
those positions on which the members agree (3).
The GLC was set up by the member states as the St.
Lawrence Seaway construction was well under way. The
concern of the states was, at the time, to coordinate their
views on ways to manage the economic, ecological, and
social impacts of the increasing commercial traffic that
would result from opening the Seaway in 1959.
The Council of Great Lakes Governors (CGLG), created
in 1983, is a partnership of the Governors of the eight
Great Lakes states. It has no legal basis. It is a pressure
group that coordinates actions among the member states.
It is, therefore, an institution separate from the Great
Lakes Commission. Besides, the GLC is more technical,
the CGLG more political in its aims and functioning.
In recent years, the Canadian premiers of Ontario and
Quebec have joined with the Council of Governors in
sharing their views on the Great Lakes region.
The CGLG is not limited to Great Lakes water manage-
ment. For instance, the CGLG coordinated negotiations
among member states. The resulting 1988 Economic
Development Agreement provides for coordinating the
commercial promotion and trade missions of the member
states abroad.
The central issue of common concern to all of the
Governors was protecting and managing the waters of
the Great Lakes. As the primary source of freshwater
for the region as well as a trade route that connects the
region to the world through the St. Lawrence Seaway,
proper management of the lakes is crucial to the health of
the residents of the Great Lakes region as well as to the
continued growth of the region’s economy. Consequently,
coordinating Great Lakes regional water policy was the
original impetus for creating the Council (4).
A MAJOR IMPETUS: PREVENTING DIVERSION FROM THE
GREAT LAKES
The Advent of the Great Lakes Charter
Water pollution was one concern, and the Governors
tackled the issue of improving Great Lakes water
quality. In 1986, the Governors signed the Toxic
Substances Control Agreement (TSCA) that provides for
developing programs for companies to adopt pollution-
prevention devices.
Diversion control and basin water integrity were
another major concern. Governmental archives from the
early 1980s attest to western United States lobbying for
diversion of Great Lakes water to quench their lack
of water. Great Lakes states wanted to resist these
projects, both for environmental reasons as well as for
political reasons: why would the Great Lakes states give
to California an added value at a time when so many
firms were leaving the area and moved away to the West
Coast (5). The Great Lakes Charter stemmed from this
growing concern that Great Lakes water could be diverted
to water-scarce regions of the United States, the Midwest,

and the West especially. States and provinces from the
Great Lakes Basin had discussed their fears of diversion
schemes at Mackinac Island (Michigan) in 1982 and at
Indianapolis (Indiana) in 1983. The Great Lakes Charter,
signed in 1985 by the eight Great Lakes Governors and
the premiers of Ontario and Quebec, is the final resolution
of a process set up after the Indianapolis meeting. The
Charter created a notice and consultation process for
Great Lakes diversions. The signatories agreed that no
Great Lakes state or province would proceed with any
new or increased diversion or consumptive use of Great
Lakes water of more than five million gallons per day
without notifying, consulting, and seeking the consent of
all affected Great Lakes states and provinces. It also calls
for coordinating water policies among member states and
exchanging hydrologic data.
The Great Lakes states also lobbied the federal
government that was in the process of designing a new
law governing water use in the United States. The
subsequent Water Resources Development Act of 1986
(WRDA) prohibits ‘‘any diversion of Great Lakes water by
any State, federal agency, or private entity for use outside
the Great Lakes basin unless such diversion is approved
by the Governor of each of the Great Lakes States.’’ It also
prohibits any Federal agency from studying the transfer of
Great Lakes water for use outside the Great Lakes Basin,
unless done under the auspices of the IJC. To ensure
compliance with a 1967 Supreme Court (modified in 1980)
consent decree, the Act also appropriates federal resources
to monitor and measure Lake Michigan’s water flow into
the Chicago River.
The Council coordinates the authority granted to the
Governors under the Water Resources Development Act of
1986 (WRDA). The Act requires the Governors’ unanimous
approval on any proposed out-of-basin diversion of water
from the Great Lakes Basin.
In 1997, the Great Lakes states entered into a
Memorandum of Understanding on the Lake Michigan
diversion, concluding a lengthy mediation process on the
matter of Illinois’ diversion of Lake Michigan water at
Chicago. Under the U.S. Supreme Court decrees (1967 and
1980), Illinois was limited to 3,200 cfs each year. Illinois
had exceeded that limit by nearly 15%. Illinois will further
reduce its annual diversion during the following 14 years
to restore to Lake Michigan the excess amount of water
it has withdrawn since 1980 and construct new lakefront
structures that do not allow leakage. All eight Great Lakes
states and the U.S. federal government participated in the
discussions. The Province of Ontario, as well as the City
of Chicago and the Army Corps of Engineers, were also
involved as observers or by providing technical support.
Diversions Are Still Feared: Banning Water Exports?
Diversion projects are far from being outmoded, despite
the conclusion set forth by many observers that bulk water
is, for now, too expensive to move over large distances.
Large and small diversion schemes are still pushed by
pressure groups. For instance, in the spring of 1998, the
Province of Ontario approved a permit for the Nova Group
of Sault Saint Marie Ontario that would have allowed
the Nova Group to remove 60 million gallons per year
GREAT LAKES GOVERNORS’ AGREEMENT 619
from Lake Superior that would then be sold in Asia.
In direct response to concerns expressed by the Great
Lakes Governors via the Council, the Ontario government
rescinded the permit. The accompanying public uproar
led to the previously mentioned review of the issue of
bulk removals by the International Joint Commission
(IJC) in 2000. The Governors, through the Council, were
represented on the study team that advised the IJC
on these issues. Again in November 2002, Milwaukee
mayor, John Norquist, denounced a diversion project to
bring water to far western suburbs, outside the Great
Lakes Basin.
So as to address a growing public concern that large
water diversion schemes could someday be implemented,
despite the Charter and the WRDA, the Council of Great
Lakes Governors convened in 1999 and agreed there was a
political need to reinforce the provisions of the Charter by
• forging a new, more binding agreement to manage
the Great Lakes waters;
• creating a new standard requiring an improvement
to the water and water-dependent natural resources
of the Great Lakes before allowing new water uses;
• pledging to obtain better information so that the
water is managed rationally; and
• lowering the trigger level for diversions that need to
be approved under the Charter.
The Great Lakes Governors and the premiers of
Ontario and Quebec signed the Great Lakes Charter
Annex on June 18, 2001 in Niagara Falls, New York.
The Annex, an amendment to the Great Lakes Charter
of 1985, provides a blueprint for creating a new set of
binding agreements among the states and provinces on
the effective management of Great Lakes water resources.
It also outlines a series of principles for reviewing water
withdrawals from the Great Lakes Basin that is grounded
in protecting, conserving, restoring, and improving the
Great Lakes ecosystem. The new agreement must be set
up by the member States before 2004 and then ratified at
the two national levels of Canada and the United States to
prevent any attempt to divert water from the Great Lakes
Basin. A particular emphasis was placed in the Annex on
the need to close loopholes that legal experts claim have
arisen for water exports under the North American Free
Trade Agreement and the General Agreement on Trade
and Tariffs.
The history of the Great Lakes agreements attests
to the evolution of the concerns regarding the largest
body of freshwater. From a very transportation-oriented
perspective, as embodied in the 1909 Boundary Waters
Treaty, the focus evolved to pondering the possible impacts
of the opening of the St. Lawrence Seaway in 1955, by the
Great Lakes Commission, to emphasis placed on water
quality and quantity, by the Great Lakes Charter of 1985.
The advocacy of a major water diversion by western states
pressure groups and recent strong variations in the Great
Lakes levels stirred an important public controversy that
led the Great Lakes Basin state and province leaders to
sign the Annex in 2001 to ban all large water diversion out
620 U.S./CANADIAN BOUNDARY WATERS TREATY AND THE GREAT LAKES WATER QUALITY AGREEMENT
of the basin, thus implementing recommendations already
made by the IJC in 2000.
Acknowledgment
This research was made possible thanks to a grant from
the FQRSC.
BIBLIOGRAPHY
1. IJC Status. Available: http://www.ijc.org.
2. Lasserre, F. (2002). La guerre de l’eau aura-t-elle lieu?
In: Espaces et enjeux: Méthodes d’une Géopolitique Critique.
F. Lasserre and E. Gonon (Eds.). Collection Chaire Raoul
Dandurand/UQÀM, L’Harmattan, Montréal and Paris, p.
251; Lasserre, F. (2002). L’Amérique a soif. Les États-Unis
obligeront-ils Ottawa à céder l’eau du Canada? In: Eaux et
Territoires: Tensions, Coopérations et Géopolitique de l’eau.
F. Lasserre and L. Descroix (Eds.). Presses de l’Université du
Québec/L’Harmattan, Quebec City/Paris, p. 315.
3. Great Lakes Commission. Available: http://www.glc.org/about/.
4. Council of Great Lakes Governors. Available: www.cglg.com.
5. Lasserre, F. (2001). L’Amérique a soif. Les besoins en eau
de l’Ouest des États-Unis conduiront-ils Ottawa à céder l’eau
du Canada? Revue internationale d’Études canadiennes 24:
196–214.
U.S./CANADIAN BOUNDARY WATERS TREATY
AND THE GREAT LAKES WATER QUALITY
AGREEMENT
DAVID W. YOSKOWITZ
Texas A&M University—
Corpus Christi
Laredo, Texas
The United States and Canada established the Interna-
tional Joint Commission (IJC) to take on certain respon-
sibilities for transboundary bodies of water. The United
States also has a similar arrangement with Mexico known
as the International Boundary Water Commission (IBWC).
Note that the task of the IBWC by comparison is not as
involved because it has only two rivers in its jurisdiction,
whereas the IJC has more than 200 transborder rivers (1),
plus lakes and common aquifers.
FORM
The IJC was created as a result of the Boundary Waters
Treaty of 1909 between the United States and Great
Britain because it still controlled Canadian foreign policy.
The pressure for a treaty came from within as populations
of communities on both sides of the border began to grow
and demands on water increased along with it. Initially,
obstacles had to be overcome in the legal wording of the
document because the two countries look at boundary
waters differently. Americans tend to look at boundary
water resources from the point of view of equity and
equitable utilization, in which rights and obligations of
the individual water user are recognized. Canadians, on
the other hand, see water issues in terms of equality and
the rights and responsibilities of the two states.
Institutionally, it was the early irrigation congresses
and conferences of the 1890s that ultimately promoted
movement toward considering bilateral agreements and
treaties and, as a result, the creation of the IJC (2).
The treaty begins with assurance that navigation along
common bodies of water shall remain open, and no country
may impose excessive tools on the other for use of canals,
locks, etc. Until power production and irrigation became
important uses of water near the turn of the century,
international water law had focused on navigation rights.
A strong impetus for a treaty was to secure navigation
rights, although it was less important during negotiation
than other boundary water issues (3).
The first time the IJC is mentioned in the Treaty Relat-
ing to Boundary Water Between the United States and
Canada is in Article III with regard to the authority to
approve/disapprove obstructions or diversions of boundary
water that affect the natural level or flow of the water on
the other side of the line, but it is not until Article VII that
establishes the IJC with six commissioners, three from
each side, appointed by their respective governments. Its
jurisdiction covers all cases involving use, obstruction, or
diversion for which approval is required as mentioned in
the treaty (3). A majority is required to make a decision,
and, if evenly split, separate reports will be made to the
respective governments and settled through diplomatic
channels (4).
Each country was assured equal and similar rights in
the use of the water, but there was an order of precedence:
1. uses for domestic and sanitary purposes; then
2. uses for navigation, including the service of canals
for navigation; then
3. uses for power and irrigation.
These reflect the interests of the time and thus are
dated because they do not reflect more current interests
in fisheries, recreation, wildlife, and the environment
in general (3). What makes the IJC important are the
investigative powers that were accorded to them in
Article IX, which states that, ‘‘The IJC is authorized in
each case so referred to examine into and report upon
the facts and circumstances of the particular questions
referred’’ (4). Reports issued by the IJC are not to be
considered decisions, as was made very clear in the treaty,
and therefore the governments could ultimately ignore the
IJC as they saw fit.
FUNCTION
The Boundary Water Treaty put the IJC into action using
some broad guidelines but has changed since its inception
at the beginning of the century. Along the northern border,
the questions have moved from quantity to quality, and the
IJC has a leading role in the answers. The governments
have delegated new responsibilities to the IJC based on
its track record and reputation for impartiality (3). An
existing problem is that the commission has no follow-
up implementation authority, which gives it largely an
advisory role.

Several categories of management issues/problems
dominate the work that the IJC becomes involved in,
including upstream–downstream conflicts, common pool
resources, and integrated river basin developments (5).
Work on these issues can take the form of either
an approval or reference. Approval is required if an
application is made that falls under the scope of
either Article III or IV of the Treaty (3), and usually
consists of constructing dams, hydropower projects, or
diverting flows. The IJC appoints a technical advisory
board of members from each country to conduct the
investigative work on whether to approve/disapprove a
project. References, on the other hand, take much more
time and involve constant monitoring of whatever issue
has been referred to the commission. Advisory boards are
set up in much the same way as they are in the approval
category (3).
The strength of the commission lies in several areas
where it could become an instrument for boundary
environmental protection and management: (a) The IJC
performs administrative and quasi-judicial tasks handling
a range of issues; (b) There is experience and legitimacy
in dealing with boundary issues on an impartial basis;
(c) The IJC is an arbitrator of fact; (d) It is a mediator
of policy; (e) Top water managers in each country meet
regularly under the IJC umbrella, which has created an
informal network of contact among government officials
and experts (6).
GREAT LAKES WATER QUALITY AGREEMENT AND THE IJC
The Agreement, first signed in 1972 and renewed in 1978,
expresses the commitment of each country to restore and
maintain the chemical, physical, and biological integrity of
the Great Lakes Basin ecosystem and includes a number
of objectives and guidelines to achieve these goals. It
reaffirms the rights and obligation of Canada and the
United States under the Boundary Waters Treaty.
In 1987, a Protocol was signed amending the 1978
Agreement. The amendments aim to strengthen the
programs, practices, and technology described in the
1978 Agreement and to increase accountability for
implementing them. Timetables are set for implementing
specific programs.
The parties will meet biennially to discuss progress
and report periodically to the Commission. New annexes
address atmospheric deposition of toxic pollutants, con-
taminated sediments, groundwater, and nonpoint sources
of pollution. Annexes are also added to incorporate the
development and implementation of remedial action plans
for areas of concern and lakewide management plans to
control critical pollutants.
The IJC monitors and assesses progress under the
Agreement and advises each government on matters
related to the quality of the boundary waters of the
Great Lakes system. The Agreement also calls on the
IJC to assist the United States and Canada with joint
programs under the Agreement and provides for two
binational boards—the Great Lakes Water Quality Board
and the Great Lakes Science Advisory Board—to advise
the Commission.
GREAT LAKES WATER QUALITY INITIATIVE 621
The general objectives of the agreement, expressed in
Article III of the Agreement (7), are to keep the waters:
(a) free from substances that directly or indirectly
enter the waters as a result of human activity and
that will settle to form putrescent or otherwise
objectionable sludge deposits, or that will adversely
affect aquatic life or waterfowl;
(b) free from floating materials such as debris, oil,
scum, and other immiscible substances result-
ing from human activities in amounts that are
unsightly or deleterious;
(c) free from materials and heat directly or indirectly
entering the water as a result of human activity
that alone, or in combination with other materials,
will produce color, odor, taste, or other conditions in
such a degree as to interfere with beneficial uses;
(d) free from materials and heat directly or indirectly
entering the water as a result of human activity
that alone, or in combination with other materials,
will produce conditions that are toxic or harmful to
human, animal, or aquatic life; and
(e) free from nutrients directly or indirectly entering
the waters as a result of human activity in amounts
that create growths of aquatic life that interfere
with beneficial uses.
BIBLIOGRAPHY
1. Allee, D.J. (1993). Subnational governance and the interna-
tional joint—commission: local management of United States
and Canadian boundary water. Natl. Resour. J. 33: 133–151.
2. Carroll, J.E. (1986). Water resources management as an issues
in environmental diplomacy. Natl. Resour. J. 26: 207–242.
3. Lemarquand, D. (1993). The international joint commission
and changing Canada—United States boundary relations.
Natl. Resour. J. 33: 59–91.
4. Treaty Relating to Boundary Water Between the United States
and Canada, January 11, 1909. U.S.—Great Britain, 36 Stat,
2449.
5. Sadler, B. (1993). Shared resources, common future, sustain-
able management of Canada–United States border waters.
Natl. Resour. J. 33: 375–396.
6. Lemarquand, D. (1986). Preconditions to cooperation in
Canada–United States boundary waters. Natl. Resour. J. 26:
361–380.
7. Great Lakes Water Quality Agreement of 1978 Agreement,
with Annexes and Terms of Reference, between the United
States and Canada signed at Ottawa November 22, 1978 and
Phosphorus Load Reduction Supplement signed October 16,
1983 as amended by Protocol signed November 18, 1987.
GREAT LAKES WATER QUALITY INITIATIVE
ELSIE F. MILLANO
ERM, Inc.
Vernon Hills, Illinois
GENERAL DESCRIPTION
The Great Lakes Water Quality Initiative (the ‘‘Initiative’’)
is a program to improve the quality of the waters in the
622 GREAT LAKES WATER QUALITY INITIATIVE
Great Lakes system. The Great Lakes consist of (1) Lake
Ontario, Lake Erie, Lake Huron (including Lake Saint
Clair), Lake Michigan, and Lake Superior; and (2) their
connecting channels, including the Saint Mary’s River, the
Saint Clair River, the Detroit River, the Niagara River,
and the Saint Lawrence River to the Canadian border. The
Great Lakes system includes all streams, rivers, lakes,
and other bodies of water within the drainage basin of
the Great Lakes within the United States. The effort was
undertaken by the U.S. Environmental Protection Agency
(U.S. EPA) and the eight Great Lakes U.S. states (Illinois,
Indiana, Michigan, Minnesota, Ohio, Pennsylvania, New
York, and Wisconsin), supported by the U.S. Fish and
Wildlife Service, the National Park Service, environmental
groups, municipalities, industry, and academia.
The main objective of the Initiative is to reduce
the discharge of bioaccumulative compounds of concern
(BCCs) into the Great Lakes system. The first phase of
the Initiative consisted of the development of a consistent
set of water quality criteria to be applied throughout the
Great Lakes system by the Great Lakes States and by any
Indian Tribes that have jurisdiction over portions of the
Great Lakes system.
The Initiative participants collected available scientific
information on persistent toxic chemicals in the Great
Lakes system, reviewed and evaluated the data and the
different regulations and procedures to establish water
quality criteria of the participant states and developed the
water quality criteria and procedures issued in 1995 as
the Water Quality Guidance for the Great Lakes System
(the ‘‘Guidance’’).
The second phase of the Initiative, called the Great
Lakes Toxic Reduction Effort (GLTRE), is under develop-
ment. The GLTRE focuses on reducing BCCs contributed
to the Great Lakes system by nonpoint sources.
HISTORY
In the spring of 1989, the Council of Great Lakes
Governors unanimously agreed to participate in the
Initiative with the U.S. EPA, to establish consistent
water quality criteria throughout the Great Lakes system.
The Initiative was a response by the United States to
continuous contamination of the Great Lakes system by
persistent and bioaccumulative toxic (PBT) pollutants
(such as polychlorinated biphenyls, dioxins, DDT, DDE,
and mercury), despite efforts to bring the Great Lakes
system back into health that date back to 1972, when
Canada and the United States signed the Great Lakes
Water Quality Agreement (GLWQA).
At the time of the 1972 GLWQA, algae growth and
reduced dissolved oxygen concentration were reducing the
fish population in the Great Lakes system. The 1972
GLWQA specified (1) objectives to reduce the discharge
of pollutants that caused nuisance conditions (color,
odor, floating oil and scum, aquatic weeds, and algae)
and of substances toxic to human, animal, or aquatic
life; and (2) numerical targets for reducing loadings of
phosphorus into the lower Great Lakes (i.e., Lake Erie
and Lake Ontario). The 1972 GLWQA also contained
measures to reduce the loading of phosphorus, including
effluent limits on all major municipal sewage treatment
facilities, limitations on the phosphorus content in
household detergents, and reduction in nonpoint source
runoff loadings.
During the 1970s, the passage of the Clean Water Act
in the United States and similar efforts in Canada reduced
the discharge of untreated municipal and industrial
wastewaters and provided funding for further evaluating
the effects of pollutants on the Great Lakes system. The
additional research indicated that PBT substances were
responsible for the declining population and accumulation
of pollutants in several species of animals, including bald
eagles, minks, herring gulls, double-crested cormorants,
common and Caspian terns, ospreys, and lake trout
among others.
As a result, the 1978 revisions to the GLWQA
established a policy calling for virtual elimination of
the discharge of PBT substances. In addition, the 1978
GLWQA specified modified phosphorus target loadings for
the lower Great Lakes and new phosphorus target loadings
for the upper Great Lakes.
In the 1980s, scientists detected effects of PBT
substances on humans, consisting of neurological effects
on infants whose mothers had eaten Lake Michigan
fish contaminated with PBT substances during their
pregnancies. In 1987, Canada and the United States
amended the GLWQA by Protocol to require the
development of (1) Lakewide Management Plans (LaMPs)
to control and reduce PBT substances and (2) Remedial
Action Plans (RAPs) for 43 recognized local areas of
concern in the lakes (now 42, one of them was delisted
as such an area in 1994) affected by PBT substances. The
1987 amendments called for greater coordination among
different jurisdictional authorities to allow the success of
the LaMPs and RAPs, plus more focused attention on
PBT substance pollution from land runoff, contaminated
sediment, airborne toxic substances, and contaminated
groundwater.
As previously indicated, one of the objectives of the
Initiative was to develop water quality guidance for
BCCs in the Great Lakes system to ensure consistency
in requirements among the Great Lakes states. In 1990,
the U.S. Congress approved an amendment to the Clean
Water Act that required the U.S. EPA to publish water
quality guidance for the Great Lakes system in accordance
with the 1987 GLWQA and to perform other key activities
in the 1987 GLWQA, imposed statutory deadlines for
implementing the water quality guidance once issued, and
provided funding for programs to meet the 1987 GLWQA
requirements. The Water Quality Guidance for the Great
Lakes System (the ‘‘Guidance’’) was issued by the U.S. EPA
in March 1995 and supplemented in November 2000. The
Guidance uses the term BCC to refer to PBT substances.
The GLTRE is currently focusing on the other aspects of
the 1987 GLWQA.
WATER QUALITY GUIDANCE FOR THE GREAT LAKES
SYSTEM
Under United States regulations, each state or Indian tribe
has the right to set water quality criteria for the waters

under their jurisdiction. These criteria are, in turn, used
by each state or Indian tribe to develop water quality
standard-based discharge limits for wastewater effluents
under the National Pollutant Discharge Elimination
System (NPDES). The issuance of the Guidance ensures
that all point source discharges to the Great Lakes system
will meet a set of consistently developed criteria.
General Description
The proposed regulation was issued in 1993. The final
Guidance, which was issued in March 1995 and then
supplemented in November 2000, contains
• water quality criteria for a set of 29 chemical
constituents to protect aquatic life, human health,
and/or wildlife;
• procedures to develop water quality criteria for
additional pollutants;
• an antidegradation policy to be adopted, at a
minimum, for BCCs;
• a ban on mixing zones for BCCs; and
• procedures to implement the water quality crite-
ria guidance.
Mixing zones, which are established by each state
on a point-source basis, allow discharge of compounds
at concentrations higher than the surface waterbody
standard as long as the concentration in the water near or
outside the boundary of the mixing zone meets the water
quality criteria.
The March 1995 Guidance contained all five elements
listed above, but the ban on mixing zones was vacated in
June 1997 by the U.S. Court of Appeals in the District
of Columbia and reinstated in November 2000 with
modifications. The final Guidance is codified at Part 132 of
Table 1. Attachments to the Water Quality Initiative
Regulation
Attachment Description
Table 1 Acute Water Quality Criteria for Protection of
Aquatic Life in Ambient Water
Table 2 Chronic Water Quality Criteria for Protection
of Aquatic Life in Ambient Water
Table 3 Water Quality Criteria for Protection of
Human Health
Table 4 Water Quality Criteria for Protection of
Wildlife
Table 5 Pollutants Subject to Federal, State, and
Tribal Requirements
Table 6 Pollutants of Initial Focus in the Great Lakes
Water Quality Initiative
Appendix A Methodologies for Development of Aquatic Life
Criteria and Values
Appendix B Methodology for Deriving Bioaccumulation
Factors
Appendix C Methodologies for Development of Human
Health Criteria and Values
Appendix D Methodology for the Development of Wildlife
Criteria
Appendix E Antidegradation Policy
Appendix F Implementation Procedures
GREAT LAKES WATER QUALITY INITIATIVE 623
Title 40 of the Code of Federal Regulations, and includes
the six tables and the six appendixes shown in Table 1.
The implementation procedures included in Appendix F
are listed in Table 2.
The Guidance required the Great Lakes states to adopt
and submit to the U.S. EPA for review, within two
years of publication of the final Guidance (i.e., March 23,
1997), minimum water quality standards, antidegradation
policies, and implementation procedure regulations in
compliance with the corresponding Guidance procedures.
To date, all states have submitted their proposed
regulations and obtained either approval or partial
approval of their submittals. When an element of a
state’s submittal was inconsistent with the Guidance,
the U.S. EPA disapproved that element of the submittal
and established that the specific state has to meet the
Guidance’s requirements for that specific element.
Water Quality Criteria
Table 3 presents the 29 chemical constituents for which
water quality criteria were issued, along with an indication
of whether each compound is a BCC and what population
is covered by the water quality criteria. The Guidance
includes water quality criteria for
• protecting aquatic life on an acute and chronic basis;
• protecting human health from drinking water and
eating fish, or from recreationally using the Great
Lakes waters; and
• protecting wildlife against ingestion of aquatic life
containing the indicated chemical constituents.
Tables 4 through 7 reproduce the Guidance’s water qual-
ity criteria, and Table 8 presents the pollutants of initial
focus in the Guidance. Only chemical constituents for
which sufficient information was available to determine a
water quality standard based on requirements included in
the Guidance appear in Tables 4 through 7; those chemi-
cal constituents include only nine of the 22 BCCs shown
in Section A of Table 8.
Table 2. List of Implementation Procedures
Procedure # Description
1 Site-Specific Modification to Criteria and Values
2 Variances from Water Quality Standards for
Point Sources
3 Total Maximum Daily Loads, Wasteload
Allocations for Point Sources, Load Allocations
for Nonpoint Sources, Wasteload Allocations in
the Absence of a TMDL, and Preliminary
Wasteload Allocations for Purposes of
Determining the Need for Water Quality Based
Effluent Limits
4 Additivity
5 Reasonable Potential to Exceed Water Quality
Standards
6 Whole Effluent Toxicity Requirements
7 Loading Limits
8 Water Quality-Based Effluent Limitations Below
the Quantification Level
9 Compliance Schedules
624 GREAT LAKES WATER QUALITY INITIATIVE

Table 3. Summary of the Parameters for which a Water Quality Criterion/Standard is Presented in Part 132
Parameter BCC? Acute Aquatic Life Chronic Aquatic Life Human Health Wildlife

Arsenic (III) XX XX
Benzene XX
Cadmium XX XX
Chlordane Yes XX
Chlorobenzene XX
Chromium (III) XX XX
Chromium (VI) XX XX
Copper XX XX
Cyanide XX XX
Cyanides XX
DDT XX
DDT and metabolites Yes XX
Dieldrin Yes XX XX XX
2,4-Dimethylphenol XX
2,4-Dinitrophenol XX
Endrin XX XX
Hexachlorobenzene Yes XX
Hexachloroethane XX
Lindane Yes XX XX
Mercury (II) Mercury XX XX
Mercury (including methylmercury) Mercury XX XX
Methylene chloride XX
Nickel XX XX
Parathion XX XX
PCBs (class) Yes XX XX
Pentachlorophenol XX XX
Selenium XX XX
2,3,7,8-TCDD Yes XX XX
Toluene XX
Toxaphene Yes XX
Trichloroethylene XX
Zinc XX XX

Key:
BCC = Bioaccumulative chemical of concern
DDD = 1, 1-Dichloro-2,2-bis(p-chlorophenyl)ethane
DDE = 1, 1-Dichloro-2,2-bis(p-chlorophenyl)ethylene
DDT = 1, 1, 1-Trichloro-2,2-bis(p-chlorophenyl)ethane
TCDD = Tetrachlorodibenzo-p-dioxin
Notes:
The concentration of 2,3,7,8-TCDD in the wastewater discharge to be compared with the effluent standards for the protection of human health must be
calculated by determining the equivalent toxicity of all dioxins and furans.
DDT’s metabolites include DDD and DDE.

The Guidance establishes that water quality criteria
for protecting aquatic life, human health, and wildlife
for pollutants not included in Tables 4 through 7 must
be developed by each state using the procedures in
Appendixes A, C, and D of the Guidance. In addition,
water quality criteria for the chemical constituents or
parameters listed in Table 9 can be established on a state-
specific basis, which may or may not be in accordance with
the procedures in the Guidance.
Antidegradation Policy
The antidegradation policy consists of the follow-
ing provisions:
• applies, at a minimum, to BCCs;
• includes an antidegradation standard that requires
maintaining the water quality necessary to protect
existing uses;
• allows the identification of high-quality waters for
individual pollutants;
• provides procedures for implementing the antidegra-
dation standard;
• describes the information required for demonstra-
tions to lower water quality; and
• presents the procedures to be followed to evaluate
demonstrations to lower water quality and issue
decisions on lowering water quality; these demon-
strations are subject to public participation and
intergovernmental coordination.
Mixing Zones Ban
With respect to the ban on mixing zones for BCCs, the
Guidance establishes the following requirements:
• elimination of the use of mixing zones for the BCCs
shown in Section A of Table 8 for new dischargers;
 GREAT LAKES WATER QUALITY INITIATIVE 625

• phasing out of mixing zones for BCCs discharged by Table 5. Chronic Water Quality Criteria for Protection of
existing facilities by November 15, 2010; and Aquatic Life in Ambient Water3
• allowing an exception to the mixing zone ban Conversion
for dischargers that (1) have discharges at higher Part Chemical CCC (µg/L) Factor (CF)
concentrations of BCCs than specified in the
(a) Arsenic (III) 147.9a,b 1.000
Guidance as a result of water conservation measures
Chromium (VI) 10.98a,b 0.962
that produce an overall reduction of the mass Cyanide 5.2c n/a
of BCCs discharged, or (2) treat their discharge Dieldrin 0.056d n/a
using the best possible technology and would suffer Endrin 0.036d n/a
unreasonable economic effects if further control Mercury (II) 0.9081a,b 0.85
measures were taken. Parathion 0.013d n/a
Selenium 5a,b 0.922

GREAT LAKES TOXIC REDUCTION EFFORT Conversion

Part Chemical m(C) b(C) Factor (CF)
The GLTRE is evaluating nonpoint sources, wet-weather
(b) Cadmiume,f 0.7852 −2.715 0.85
point sources, and atmospheric deposition to determine
Chromium (III)e,f 0.819 +0.6848 0.860
Coppere,f 0.8545 −1.702 0.960
Table 4. Acute Water Quality Criteria for Protection of
Nickele,f 0.846 +0.0584 0.997
Aquatic Life in Ambient Water1
Pentachlorophenolg 1.005 −5.134 n/a
Conversion Zince,f 0.8473 +0.884 0.986
Part Chemical CMC (µg/L) Factor (CF)
Key:
(a) Arsenic (III) 339.8a,b 1.000 The term ‘‘n/a’’’ means not applicable.
Chromium (VI) 16.02a,b 0.982 The term ‘‘exp’’ represents the base e exponential function.
The term ‘‘ln’’ represents the natural logarithm function.4
Cyanide 22c n/a
CCC is Criterion Continuous Concentration.
Dieldrin 0.24d n/a CCC(tr) is the CCC expressed as total recoverable.
Endrin 0.086d n/a CCC(d) is the CCC expressed as a dissolved concentration.
Lindane 0.95d n/a CCC(t) is the CCC expressed as a total concentration.
Mercury (II) 1.694a,b 0.85 Notes:
Parathion 0.065d n/a a
CCC = CCC(tr).
Selenium 19.34a,b 0.922 b
CCC(d) = [CCC(tr)]∗ CF. The CCC(d) shall be rounded to two signifi-
cant digits.
Conversion c
CCC should be considered free cyanide as CN.
Part Chemical m(A) b(A) Factor (CF) d
CCC = CCC(t).
e
CCC(tr) = exp{m(C)∗ [ln (hardness)] + b(C)}.
(b) Cadmiume,f 1.128 −3.6867 0.85 f
CCC(d) = [CCC(tr)]∗ (CF). The CCC(d) shall be rounded to two signifi-
Chromium (III)e,f 0.819 +3.7256 0.316 cant digits.
Coppere,f 0.9422 −1.700 0.960
g
CMC(t) = exp{m(A)∗ (pH) + b(A)}. The CMC(t) shall be rounded to two
significant digits.
Nickele,f 0.846 +2.255 0.998
Pentachlorophenolg 1.005 −4.869 n/a
Zince,f 0.8473 +0.884 0.978 the need for additional controls on the discharge of BCCs
Key: from these sources. Some of the issues being evaluated or
The term ‘‘n/a’’ means not applicable. to be evaluated include
The term ‘‘ln’’ represents the natural logarithm function.2
The term ‘‘exp’’ represents the base e exponential function. • additional regulation of BCCs under the Clean
CMC is Criterion Maximum Concentration. Air Act;
CMC(tr) is the CMC expressed as total recoverable.
CMC(d) is the CMC expressed as a dissolved concentration. • spill prevention planning;
CMC(t) is the CMC expressed as a total concentration. • reduction of BCC discharge from hazardous waste
Notes:
sites being remediated under the Resource Conser-
a
CMC = CMC(tr)
b
CMC(d) = [CMC(tr)]∗ CF. The CMC(d) shall be rounded to two signifi- vation and Recovery Act and the Comprehensive
cant digits. Environmental Response, Compensation, and Lia-
c
CMC should be considered free cyanide as CN. bility Act;
d
CMC = CMC(t)
e
CMC(tr) = exp{m(A)∗ [ln (hardness)] + b(A)}
• improved pesticide registration procedures;
f
CMC(d) = [CMC(tr)]∗ CF. The CMC(d) shall be rounded to two signifi- • additional regulation of combined sewer overflows
cant digits. and stormwater outfalls (wet-weather sources);
g
CMC(t) = exp m(A)∗ [(pH) + b(A)]. The CMC(t) shall be rounded to two
significant digits. • public education on the dangers of BCCs;
1 • improved reporting of BCCs under the Toxic Release
EPA recommends that metals criteria be expressed as dissolved
concentrations.
Inventory; and
2
Not included in the regulation. • procedures to apply the National Contaminated
3
EPA recommends that metals criteria be expressed as dissol- Sediment Management Strategy in the Great
ved concentrations. Lakes Basin.
4
Not included in the regulation.
626 GREAT LAKES WATER QUALITY INITIATIVE

Table 6. Water Quality Criteria for Protection of Human Table 7. Water Quality Criteria for Protection of Wildlife
Health
Chemical Criteria (µg/L)
HNV (µg/L) HCV (µg/L)
DDT and metabolites 1.1E−5
Non- Non- Mercury (including methylmercury) 1.3E−3
Chemical Drinking Drinking Drinking Drinking PCBs (class) 7.4E−5
2,3,7,8-TCDD 3.1E−9
Benzene 1.9E1 5.1E2 1.2E1 3.1E2
Chlordane 1.4E−3 1.4E−3 2.5E−4 2.5E−4 Key:
Chlorobenzene 4.7E2 3.2E3 DDD = 1, 1-Dichloro-2,2-bis(p-chlorophenyl)ethane
Cyanides 6.0E2 4.8E4 DDE = 1, 1-Dichloro-2,2-bis(p-chlorophenyl)ethylene
DDT = 1, 1, 1-Trichloro-2,2-bis(p-chlorophenyl)ethane
DDT 2.0E−3 2.0E−3 1.5E−4 1.5E−4
PCBs = Polychlorinated biphenyls
Dieldrin 4.1E−4 4.1E−4 6.5E−6 6.5E−6
TCDD = Tetrachlorodibenzo-p-dioxin
2,4-Dimethylphenol 4.5E2 8.7E3 Note:
2,4-Dinitrophenol 5.5E1 2.8E3 DDT and metabolites include DDD and DDE.
Hexachlorobenzene 4.6E−2 4.6E−2 4.5E−4 4.5E−4
Hexachloroethane 6.0 7.6 5.3 6.7
Lindane 4.7E−1 5.0E−1 In addition to the GLTRE efforts to control BCCs, each of
Mercury (including 1.8E−3 1.8E−3 the Great Lakes states has prepared a Lake Management
methylmercury) Plan (LaMP) under the binational GLWQA, which
Methylene chloride 1.6E3 9.0E4 4.7E1 2.6E3 will evaluate current sources of BCCs and recommend
PCBs (class) 3.9E−6 3.9E−6 enhancements to any media-specific program that would
2,3,7,8-TCDD 6.7E−8 6.7E−8 8.6E−9 8.6E−9 result in improved quality of the Great Lakes.
Toluene 5.6E3 5.1E4
Toxaphene 6.8E−5 6.8E−5
READING LIST
Trichloroethylene 2.9E1 3.7E2
Key: Additional information can be found in the web pages listed below.
DDT = 1, 1, 1-Trichloro-2,2-bis(p-chlorophenyl)ethane Information presented in this entry is current as of December
HNV = Human non-cancer value 2001.
HCV = Human cancer value
PCBs = Polychlorinated biphenyls Great Lakes Initiative: http://www.epa.gov/waterscience/GLI/.
TCDD = Tetrachlorodibenzo-p-dioxin.

Table 8. Pollutants of Initial Focus in the Great Lakes Water Quality Initiative
Section A. Pollutants that Are Bioaccumulative Chemicals of Concern
Chlordane 4,4 -DDD; p,p -DDD; 4,4 -TDE; p,p -TDE
4,4 -DDE; p,p -DDE 4,4 -DDT; p,p -DDT
Dieldrin Hexachlorobenzene
Hexachlorobutadiene; hexachloro-1, 3-butadiene Hexachlorocyclohexanes; BHCs
alpha-Hexachlorocyclohexane; alpha-BHC beta-Hexachlorocyclohexane; beta-BHC
delta-Hexachlorocyclohexane; delta-BHC Lindane; gamma-hexachlorocyclohexane; gamma-BHC
Mercury Mirex
Octachlorostyrene PCBs; polychlorinated biphenyls
Pentachlorobenzene Photomirex
2,3,7,8-TCDD; dioxin 1,2,3,4-Tetrachlorobenzene
1,2,4,5-Tetrachlorobenzene Toxaphene
Section B. Pollutants that Are Not Bioaccumulative Chemicals of Concern
Acenaphthene Acenaphthylene
Acrolein; 2-propenal Acrylonitrile
Aldrin Aluminum
Anthracene Antimony
Arsenic Asbestos
1,2-Benzanthracene; benz[a]anthracene Benzene
Benzidine Benzo[a]pyrene; 3,4-benzopyrene
3,4-Benzofluoranthene; benzo[b]fluoranthene 11,12-Benzofluoranthene; benzo[k]fluoranthene
1,12-Benzoperylene; benzo[ghi]perylene Beryllium
bis(2-Chloroethoxy) methane Bis(2-chloroethyl) ether
bis(2-Chloroisopropyl) ether Bromoform; tribromomethane
4-Bromophenyl phenyl ether Butyl benzyl phthalate
Cadmium Carbon tetrachloride; tetrachloromethane
Chlorobenzene p-Chloro-m-cresol; 4-chloro-3-methylphenol
Chlorodibromomethane Chloroethane
2-Chloroethyl vinyl ether Chloroform; trichloromethane
2-Chloronaphthalene 2-Chlorophenol
4-Chlorophenyl phenyl ether Chlorpyrifos
Chromium Chrysene
 QUANTITATIVE GROUNDWATER LAW 627

Table 8. (continued)
Copper Cyanide
2,4-D; 2,4-Dichlorophenoxyacetic acid DEHP; di(2-ethylhexyl) phthalate
Diazinon 1,2:5,6-Dibenzanthracene; dibenz[a,h]anthracene
Dibutyl phthalate; di-n-butyl phthalate 1,2-Dichlorobenzene
1,3-Dichlorobenzene 1,4-Dichlorobenzene
3,3 -Dichlorobenzidine Dichlorobromomethane; bromodichloromethane
1,1-Dichloroethane 1,2-Dichloroethane
1,1-Dichloroethylene; vinylidene chloride 1,2-trans-Dichloroethylene
2,4-Dichlorophenol 1,2-Dichloropropane
1,3-Dichloropropene; 1,3-dichloropropylene Diethyl phthalate
2,4-Dimethylphenol; 2,4-xylenol Dimethyl phthalate
4,6-Dinitro-o-cresol; 2-methyl-4,6-dinitrophenol 2,4-Dinitrophenol
2,4-Dinitrotoluene 2,6-Dinitrotoluene
Dioctyl phthalate; di-n-octyl phthalate 1,2-Diphenylhydrazine
Endosulfan; thiodan alpha-Endosulfan
beta-Endosulfan Endosulfan sulfate
Endrin Endrin aldehyde
Ethylbenzene Fluoranthene
Fluorene; 9H-fluorene Fluoride
Guthion Heptachlor
Heptachlor epoxide Hexachlorocyclopentadiene
Hexachloroethane Indeno[1,2,3-cd]pyrene; 2,3-o-phenylene pyrene
Isophorone Lead
Malathion Methoxychlor
Methyl bromide; bromomethane Methyl chloride; chloromethane
Methylene chloride; dichloromethane Naphthalene
Nickel Nitrobenzene
2-Nitrophenol 4-Nitrophenol
n-Nitrosodimethylamine n-Nitrosodiphenylamine
n-Nitrosodipropylamine; n-nitrosodi-n-propylamine Parathion
Pentachlorophenol Phenanthrene
Phenol Iron
Pyrene Selenium
Silver 1,1,2,2-Tetrachloroethane
Tetrachloroethylene Thallium
Toluene; methylbenzene 1,2,4-Trichlorobenzene
1,1,1-Trichloroethane 1,1,2-Trichloroethane
Trichloroethylene; trichloroethene 2,4,6-Trichlorophenol
Vinyl chloride; chloroethylene; chloroethene Zinc
Key:
DDD = 1, 1-Dichloro-2,2-bis(p-chlorophenyl)ethane
DDE = 1, 1-Dichloro-2,2-bis(p-chlorophenyl)ethylene
DDT = 1, 1, 1-Trichloro-2,2-bis(p-chlorophenyl)ethane
TCDD = Tetrachlorodibenzo-p-dioxin
TDE = DDD

Table 9. Pollutants Subject to Federal, State, and Tribal QUANTITATIVE GROUNDWATER LAW
Requirements
Alkalinity Ammonia
MARSHALL LAWSON
Bacteria Biochemical oxygen demand (BOD) Land Conservation Legal
Chlorine Color Services, LLC
Dissolved oxygen Dissolved solids Columbia, South Carolina
pH Phosphorus
Salinity Temperature INTRODUCTION
Total and suspended solids Turbidity
From ancient times, the law looked upon surface water and
groundwater as separate resources, requiring separate
Federal Register—Environmental Documents: http://www.epa rules for ownership and use. Whereas surface water was
.gov/fedrgstr/. considered a public good to be shared among competing
Code of Federal Regulations: http://www.access.gpo.gov/nara/cfr users, groundwater was equated with private property to
/index.html. be appropriated by the landowner at will.1
Great Lakes Water Quality Agreement: http://www.on.ec.gc.ca/
glwqa. 1
Compare Dig. 43.12.3 (Paulus, Ad Sabinum 16) (‘‘Rivers which
Great Lakes National Program Office: http://www.epa.gov/glnpo/. flow [perennially] are public, and their banks are also public.’’);
628 QUANTITATIVE GROUNDWATER LAW
The separate classification and treatment of groundwa-
ter can be attributed, in part, to a primitive understanding
of hydrogeology; a mathematical description of groundwa-
ter storage and movement was not formulated until the
midnineteenth century and not widely disseminated until
the late twentieth century.2 Without an understanding
of aquifer characteristics, legal authorities lacked a basis
for developing sophisticated groundwater allocation rules.
The occurrence and nature of groundwater was, to them,
too ‘‘. . . uncertain . . .[to] subject it to the regulations of
law. . .’’.3
Hand in glove with a nascent understanding of
hydrogeology was the propensity of nineteenth century
English jurists and commentators to follow the perceived
equities of Roman water law as ‘‘indirect authority’’ for
English water law.4 The English Reasonable Use Rule, for
example, embodies the Roman concept of limited property
rights in public surface waters.5 Likewise, the Roman
Dig. 43.20.3.1 (Pomponius, Ad Sabinum 34) (‘‘Many may take
away water from a river, but in such manner only that their
neighbors are not injured, or if the stream is not large, those
on the other side.’’) with Dig. 43.24.11 (Ulpian, Ad Edictum
71) (Labeo stating the well settled rule that groundwater was
considered part of the land); Dig. 39.3.1.12 (Ulpian, Ad Edictum
53) (Marcellus holding ‘‘that to him who, digging in his own land,
turns away the sources of his neighbor’s spring, nothing can be
done, not even an action for fraud, and surely there should be none
if that which he did was for the purpose of benefiting his own field,
and not with the intention of injuring his neighbor.’’) (The Digests
or Pandects of Justinian, commenced in A.D. 530 and completed
in A.D. 533, comprise part of the Corpus Juris Civilis, the great
codification of the Roman Emperor Justinian. The sections of the
Digest pertaining to water reveal a remarkable understanding
of the equities of water use. Although written almost 1500 years
ago and based upon legal principles formed over the preceding
1000 years, the Pandects provide a foundation and, in some cases,
a blueprint for many of the principles of Western water law in use
today); See also, Earl Finbar Murphy, Waters and Water Rights
§ 20.02 (Robert Beck ed., 2d ed. 1991).
2
French Engineer Henry Darcy pioneered the basic equations of
modern groundwater hydrogeology in the mid-nineteenth century
by quantifying the rate and direction of groundwater flow; see
C.W. Fetter, Applied Hydrogeology 76 (1988); Henri-Philbert-
Gaspard Darcy, Encyclopedia Britannica, III Micropaedia 883
(1991).
3
Murphy, supra note 1, at §§ 20.03 [citing Chatfield v. Wilson, 28
Vt. 49, 54 (1856)].
4
See C.E. Busby, American Water Rights Law: 5 S.C.L.Q. 106,
116 n. 57 (1952) (The language ‘‘no direct authority’’ in Acton
v. Blundell 152 Eng. Rep. 1228 (Ex. Cham. 1843) raises the
presumption the court relied on Roman law in adopting a Rule
of Capture for groundwater); See also Murphy, supra note 1, at
§ 20.04 [citing Chasemore v. Richards 11 Eng. Rep. 140, 155
(1857)] (Lord Wensleydale quoting from the Roman sources for
the proposition that groundwater lay within the domain of private
property); Embrey v. Owen, 155 Eng. Rep. 579, 585 (1851) (Baron
Parke adopting the Roman concept of usufructuary rights in
public surface waters).
5 7
Murphy, English Water Law Doctrines Before 1400, 1 Am J. Leg.
Hist. 103, 105–106 (1957) (tracing the Roman concept of surface
water as a public good); Embrey v. Owen, 159 Eng. Rep. 579, 585
(1851) (‘‘[Water that] is publici juris [is not so] in the sense that
it is a bonum vacans, to which the first occupant may acquire an
exclusive right, but that it is public and common in this sense
only: that all may reasonably use it who have a right of access
classification of groundwater as private property free
from any equitable rules of sharing appeared well over
a millennium latter in English and American common law
as Absolute Dominion or the Rule of Capture.6
The most important reason, however, for the develop-
ment of separate legal rules for surface and groundwater
centered not upon science or legal history but technology.
Prior to the invention of the deep-well turbine pump in the
last decade of the nineteenth century, groundwater could
not commonly be exploited at rates sufficient to encroach
upon the property rights of neighboring landowners. Con-
sequently, there was little need to impose legal restraints
on groundwater use.7 The advent of submersible pumps
and power drilling equipment, however, made it possible
to develop aquifers at sufficient pumping rates to cause
widespread injury to the environment and other property
owners in the form of diminished stream flow, saltwa-
ter intrusion, land subsidence, well interference, and
groundwater mining.8 Technology had effectively made
the once functional Rule of Capture obsolete in theory, if
not in practice.
As groundwater conflicts became more common,
American courts attempted to mitigate the harsh Rule of
Capture by adopting various equitable rules of allocation,
starting with the Reasonable Use Doctrine in 1862
followed by the Correlative Rights Doctrine in 1903 and
The Restatement (Second) of Torts rule in 1979.9 In
reality, the rough justice dispensed by courts under these
doctrines did little to protect groundwater supplies from
being diminished or extinguished by competing users, and
aquifers remained theoretically susceptible to complete
dewatering by overlying property owners.
In response to the failure of the common law to
manage groundwater use effectively, many Eastern states
enacted legislation modifying common law rights in the
use of groundwater. The legislation varies widely in scope
and criteria but centers upon the requirement of an
administrative permit to pump groundwater above certain
predetermined thresholds.10
In contrast to the various quasi-riparian rules govern-
ing groundwater use in states west of the Mississippi
River, a distinctly American system of water use, called
the Prior Appropriation Doctrine, arose in the arid West.
The system allocates water rights based upon priority of
beneficial use and irrespective of contiguous (or in the case
of groundwater, overlying) land ownership.
Appropriation proved more suited to the climate and
geology of the arid West than riparianism. The central
tenets of the riparian doctrine, that water rights accrue
to it; that none can have any property in the water itself, except
in particular portion which he may choose to abstract from the
[source] and take into his possession, and that during the time of
possession only.’’).
6
See Greenleaf v. Francis, 35 Mass. 117 (1836); Acton v. Blundell,
152 Eng. Rep. 1223 (Ex. Cham. 1843).
Raphael G. Kazman, Modern Hydrogeology 272 (1988).
8
Sax, J.L. et al. (2000). Legal Constraints on Water Resources, 3rd
Edn. p. 345.
9
See generally, Basset v. Salisbury Mfg. Co., 43 N. H. 569, 82
Am Dec. 179 (1862); Katz v. Walkinshaw, 74 P. 766 (Cal. 1903);
Restatement (Second) of Torts § 858 (1979).
10
Murphy, supra note 1, at § 24.05.

only to contiguous or overlying landowners and are
primarily limited to on-tract use, proved impracticable
in the West where the federal government owned
much of the land, water resources were scarce, and
mining and agriculture practices required off-stream
water use. Furthermore, the subjective allocation criteria
of the various riparian doctrines proved ill suited for
managing scarcity.
ORIGIN AND NATURE OF PROPERTY RIGHTS IN
GROUNDWATER
Property rights in water, including groundwater, have a
long pedigree in European jurisprudence. Roman law is
the oldest legal system to which the roots of European
water law can be traced with any certainty and, as
discussed above, Roman jurists considered groundwater
an integral part of the land.11 As such, the landowner
enjoyed a property right in the groundwater itself (res)
as well as an unfettered right of use (usufruct).12
English and American courts firmly embraced this concept
of groundwater as an absolute property right in the
nineteenth century.13 Although many U.S. courts and
legislatures now define groundwater as a public resource,
most, if not all, jurisdictions still acknowledge (at least
tacitly) a usufructuary right of the landowner to use the
groundwater underlying his property.14
As a form of property, regulation of groundwater use
is theoretically subject to challenge as a ‘‘taking’’ of
private property without compensation in violation of the
Takings Clause of the United States Constitution.15 At
least one court has stricken modification of water rights
as a violation of the Takings Clause,16 but the decision
11
Ludwig A. Teclaff, Water Law in Historical Perspective 6 (1985);
Dig. 43.24.11 (Ulpian, Ad Edictum 71).
12
Dig. 39.3.1.12 (Ulpian, Ad Edictum 53); Maricopa County Mun.
Water Conservation Dist. Number One v. Southwest Cotton Co.,
4 P.2d 369, 372 (Ariz. 1931).
13
See Greenleaf v. Francis, 35 Mass. 117, 121 (1836); Acton v.
Blundell, 152 Eng. Rep. 1223, 1228 (Ex. Cham. 1843); Chatfield
v. Wilson, 28 Vt. 49, 54 Chasemore v. Richards, 11 Eng. Rep.
140, 155 (1857); see also, John M. Gould, Law of Waters 538 (2d
Ed. 1891) (‘‘Water percolating through the ground beneath the
surface, either without a definite channel, or in the courses which
are unknown and unascertainable, belongs to the realty in which
it is found’’).
14
Murphy, supra note 1, at § 20.04 (‘‘Notwithstanding the
importance of public rights in water, both the common law
and the legislatively created appropriation doctrine have made
rights to water primarily the domain of private property, and
this includes groundwater’’); see generally, Bamford v. Upper
Republican Natural Resources District 512 N.W. 2d 643 (Neb.
1994); Tequesta v. Jupiter Inlet Co., 371 So.2d 663 (Fla. 1979).
15
U.S. Const. amend. V (The Takings Clause of the U.S.
Constitution bars the taking of property by the federal or state
government without compensation); see, e.g., Lucas v. South
Carolina Coastal Counsel, 505 U.S. 11003 (1992) (finding, on
remand, a compensable taking based upon the South Carolina
Coastal Council’s refusal to grant a permit to construct two
homes on the petitioner’s oceanfront property; see generally,
Robert Meltz et al., The Takings Issue: Constitutional Limits on
Land Use Control and Environmental Regulation 463-70 (1999).
16
See American Charolaise, Ltd. V. Oklahoma Water Resources
Board, 855 P.2d 568 (Okla. 1990) (The Oklahoma Supreme
QUANTITATIVE GROUNDWATER LAW 629
is very much an anomaly. Other courts addressing the
issue have upheld groundwater regulation in the face
of takings clause challenges on one of the following
grounds: (1) Permitting has not deprived a landowner of
all economic use of his property right and is, therefore,
not a compensable taking. (2) Landowners enjoy no
constitutionally protected right in groundwater until they
actually begin pumping. (3) The regulation is a valid
exercise of the sovereign’s police power.17 States have
broad police power under the Constitution to regulate for
the public health, safety, morals, and general welfare.
The sovereign’s exercise of this power may not require
compensation for diminished property rights resulting
from regulation, as long as such regulation is not arbitrary
or irrational.18
At least one authority would add another defense
to takings clause challenges to groundwater regulation.
Because the overlying landowner’s right to use water
under various riparian doctrines is ‘‘subject to complete
destruction by a more powerful pumper, [the] . . .
landowner’s expectation of exclusive use of groundwater
[is] close to illusory.’’19 Stated another way, riparian
law (or quasi-riparian law for groundwater) holds that
groundwater is private property but effectively treats it as
common property by failing to provide a mechanism for
quantifying and protecting the water right.
On the other hand, it could be argued that permitting
systems for groundwater use, depending upon the terms
of the permit, might actually strengthen the claim of a
landowner to a property right in the use of groundwater.
Consistent with this argument, a permit holder could
defend his right to pump against future permit holders if
such pumping reduced his own allotted yield.20
Regardless of the court’s willingness to uphold
groundwater-use regulation, it should not be assumed
that courts or groundwater-use statutes have abolished
private property rights in the use of groundwater. Even
the Regulated Riparian Model Water Code, which proposes
comprehensive regulation of water resources, makes clear
that the administrative permit process does not usurp
Court struck down legislation limiting riparian water rights,
holding that riparian rights constitute private property rights
and legislation permitting competing appropriators to divert the
water constituted a taking of that property for public use).
17
See Meltz, supra note 15, at 126 (citing Department of Agric. &
Consumer Serv. V. Polk, 276 U.S. 272 (1928); German v. City of
Philadelphia, 700 A.2d 444 (Pa. 1997); Hoeck v. City of Portland
57 F.3rd 781, 787 (9th Cir. 1995)). Compare City of Houston v.
Crabb, 905 S.W.2d 669, 674-75 (Tex. Ct. App. 1995) (finding a
taking where the ‘‘[c]ity failed to prove a valid exercise of its
police power’’).
18
SAX, supra note 8, at 396 (citing Peterson v. Dept. of Ecology,
596 P.2d 285 (1979)); see also Bamford v. Upper Republican
Natural Resources Dist., 512 N.W.2d 642 (Neb. 1994); Town of
Chino Valley v. City of Prescott, 638 P.2d 1324 (1981); Crookston
Cattle Co. v. Minnesota Dept. of Nat’l Resources, 300 N.W.2d 769
(Minn. 1980); Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d
663 (Fla. 1979); Omernik v. State, 218 N.W.2d 734 (Wis. 1974);
Knight v. Grimes, 127 N.W. 2d 708 (S.D. 1964); Williams v. City
of Wichita, 279 F.2d 375 (10th Cir. 1960).
19
A. Dan Tarlock et al., Law of Water Rights and Resources §
4.09[1] (1986).
20
Sax, supra note 8, at 396.
630 QUANTITATIVE GROUNDWATER LAW
common law rights in water and that ‘‘the new system
is a regulation rather than a taking of the older riparian
rights.’’21
LEGAL CLASSIFICATIONS OF GROUNDWATER
The common law historically distinguished not only
between groundwater and surface water, but also
distinguished between two types of groundwater: (1) that
found flowing in underground streams; and (2) so-called
‘‘percolating’’ groundwater, or that which did not ‘‘flow’’
but rather ‘‘oozed’’ through the void spaces within the
aquifer skeleton. Courts generally assign the law of surface
streams to the former, and groundwater law to the latter.22
As mentioned above, this dual classification arose ini-
tially because ‘‘percolating’’ groundwater was envisioned
as too ‘‘occult in its occurrence and movement’’ for courts
to attach formalistic rules to its use.23 In addition, courts
labored under the false assumption that a large portion
of groundwater occurs as an underground analog to sur-
face streams, and, therefore, both flow regimes should be
governed by the same principles. In reality, ‘‘percolating’’
groundwater, like stream water, flows in an ascertainable
direction and rate, albeit through an aquifer matrix and
at orders of magnitude slower than surface water. Fur-
thermore, the occurrence of groundwater as underground
streams is extremely rare and confined to karstic terrains
or lava flows.24
In acknowledgment of the hydraulic interconnection
between groundwater flow and stream flow, some modern
courts recognize a third legal category of groundwater,
the ‘‘subflow’’ of surface streams. The subflow of surface
streams, like water flowing in underground streams, was
generally made subject to the same law that applied to
surface water.25
Finally, statutes in a number of jurisdictions exempt
certain kinds of groundwater from ordinary groundwater
law. For example, groundwater pumped from a mine
to allow continued mineral extraction may be exempt
from regulation applied to other groundwater. Another
category of groundwater often exempted from regulation
as groundwater is water hot enough to have value as a
geothermal resource. Water extracted from the ground
as a by-product of oil and gas development may also be
separately treated by statute.26
21
American Society of Civil Engineers, Water Resources Planning
& Management Div., the Regulated Riparian Model Water Code;
Final Report of the Water Laws Committee, vii (Joseph W.
Dellapenna ed,, 1997).
22
Murphy, supra note 1, at § 20.07 (citing the American & English
Encyclopedia of Law 311 (1905); Dickinson v. The Grand Junction
Canal Co., 155 Eng. Rep. 953 (Ex. 1852)).
23
See, e.g., Frazier v. Brown, 12 Ohio St. 294, 311 (1861) (‘‘[T]he
existence, origin, movement, and course of such water, and the
causes which govern and direct their movements, are so secret,
occult and concealed, than an attempt to administer any set of
legal rules in respect to them would be involved in hopeless
uncertainty, and would be, therefore, practically impossible.’’).
24
Fletcher G. Driscoll, Groundwater and Wells, 672 (2d ed. 1986).
25
Sax, supra note 8, at 360.
26
Id. at 361.
LEGAL RULES FOR GROUNDWATER USE
Federal Legislation
The United States has no single rule governing ground-
water use. Although the federal government regulates a
wide range of groundwater pollution sources, it has, thus
far, left formulation of quantitative groundwater law to
the states, which have in turn adopted their own unique
rules and statutes governing groundwater use.27
State Groundwater Law
Common Law (Quasi-Riparian Doctrines). Four distinct
allocation doctrines for groundwater use apply east of the
Mississippi and in a handful of Western states. These
doctrines are best described as quasi-riparian because the
property right in the groundwater vests with ownership
of overlying land. They are (1) the ‘‘English rule’’ of
Capture or Absolute Ownership, (2) the ‘‘American rule’’
of Reasonable Use, (3) the ‘‘Correlative Rights Rule’’ of
shared access, and (4) the Restatement of the Law of Torts
(2d, Tent. Draft 17, § 858A).28
A definitive and accurate appraisal of states adhering
to a particular groundwater doctrine is problematic due to
the blurring of the various rules in case law; an absence of
decisional law in some states; and administrative overlays
on the common law that modify, in various degrees,
common law rights in groundwater.
In general terms, Absolute Ownership survives in only
a few jurisdictions.29 Most Eastern states employ some
variation of the Reasonable Use Rule.30 Several states
follow some variation of the Correlative Rights Rule
originating in California.31 The Restatement approach has
found little favor and has been adopted in only a handful
of states.32
Absolute Ownership (Capture). Under this doctrine, also
known as the English Rule of Capture, landowners are
allowed to withdraw all the water they wish for whatever
27
Murphy, supra note 1, at § 20.04.
28
SAX, supra note 8, at 364.
29
Id. at 366; see generally, Wiggins v. Brazil Coal & Clay Corp.,
452 N.E.2d 958 (Ind. 1983); City of Sherman v. Public Util.
Comm’n, 643 S.W.2d 683 (Tex. 1983); St. Amand v. Lehman,
47 S.E. 949 (Ga. 1904) (but putting a restriction on the rule of
capture by holding a malicious diversion or wasting of percolating
underground waters would be actionable).
30
See generally, Clinchfield Coal Corp. v. Compton, 139 S.E.
308 (1927); Rouse v. City of Kinston, 123 S.E. 482 (N.C. 1924);
Nashville C. & St. L. Ry. V. Rickert, 89 S.W.2d 889 (1935), cert.
Denied by Tennessee Supreme Court (1936); Sloss-Sheffield Steel
& Iron Co. v. Wilkes, 165 So. 764 (Ala. 1938); Barclay v. Abraham,
96 N.W. 1080 (Iowa 1903); Cincinnati, N.O., & Tex. Pac. R.R. v.
Gillespie, 113 S.W. 89 (Ky. 1908); Schenck v. City of Ann Arbor,
163 N.W. 109 (Mich. 1917); Pence v. Carney, 52 S.E. 702 (W.
Va. 1905); Cline v. American Aggregates Corp.; 474 N.E.2d 324
(Ohio 1984); Rothrauf v. Sinking Spring Water Co., 14 A.2d 87(Pa.
1940); Wood v. Picillo, 443 A.2d 1244 (R.I. 1982); State v. Michels
Pipeline Const., Inc., 217 N.W.2d 339 (Wis. 1974)
31
Katz v. Walkinshaw, 74 P. 766 (Cal. 1903); see also Jones v.
Oz-Ark-Val Poultry Co., 306 S.W.2d 111 (Ark. 1957); Prather v.
Eisenmann, 261 N.W.2d 766 (Neb. 1978); Vt. Stat. Ann. Tit. 10, §
1410(a)(3) (1984).
32
SAX, supra note 8, at 366.

purpose on or off the owner’s land. The owner could even
waste the water, thereby injuring a neighbor, but still face
no liability.33
American Reasonable Use. Reasonable Use, also known
as the American Rule, found favor with American
courts as a modification of Absolute Dominion. In effect,
Reasonable Use is equivalent to an equitable servitude
upon the property right in groundwater requiring that
(1) groundwater use be reasonable and (2) such use must
be confined to the overlying tract of land.34
The term ‘‘Reasonable’’ varied among jurisdictions
but generally meant ‘‘A waste of water or a wasteful
use of water was unreasonable only if it caused harm,
and any nonwasteful use of water that caused harm
was, nevertheless, reasonable if it was made on or in
connection with the overlying land.’’35 The doctrine does
not articulate a rule of allocation, but some courts imply
a rule of sharing that makes the practical application of
the doctrine difficult to differentiate from the Correlative
Rights Doctrine.36
Correlative Rights (‘‘California Rule’’). This doctrine, first
articulated by the California Supreme Court, requires
a sharing of available water equitably among overlying
landowners. They share the resource in times of scarcity
proportionate either to their aerial land ownership or
actual historic use.37 Even if the water is used beneficially
on the overlying land, landowners cannot infringe upon the
rights of others by exceeding their proportionate shares.38
Off-tract uses are subordinate and are legally protected
only in the event ‘‘surplus’’ water is available, that is, if
recharge exceeds withdrawals.
If no competition for water exists, then Correlative
Rights are synonymous with Reasonable Use.39
Restatement (Second) of Torts (Reasonable Use). Al-
though the Restatement rule is similar to reasonable use,
it draws no distinction between on-tract and off-tract use.
It also differs from Reasonable Use by establishing criteria
for liability. A landowner who pumps groundwater from
33
See Greenleaf v. Francis, 35 Mass. 117 (1836) (‘‘Everyone has
the liberty of doing in his own ground whatsoever he pleases,
even although it should occasion his neighbor some other sort of
inconvenience’’); Acton v. Blundell, 152 Eng. Rep. 1223, 1228 (Ex.
Cham. 1843) (In this case, a landowner’s well was dewatered by a
neighbor’s excavation of a coal mine. The court held the damage
to be damnum absque injuria [an injury without a remedy] based
upon its determination that groundwater flow was inherently
unpredictable: ‘‘. . . the person who owns the surface may dig
therein; and apply all that is there found to his own purposes at
his free will and pleasure; and that if, in the exercise of such right,
he intercepts or drains off the water collected from underground
springs in his neighbor’s well, this inconvenience to his neighbor
. . . cannot become the ground of an action . . .’’).
34
Henderson v. Wade Sand & Gravel Co., 388 So.2d 900 (Ala.
1980)
35
Id.
36
Murphy, supra note 1, at § 22.01
37
Joseph W. Dellapenna, Groundwater Law for Mineral Lawyers,
Energy & Mineral Law Foundation (1992).
38
Murphy, supra note 1, at § 20.07.
39
Sax, supra note 8, at 364; Fletcher G. Driscoll, Groundwater
and Wells 673 (2d ed. 1986).
QUANTITATIVE GROUNDWATER LAW 631
his land and uses it for a beneficial purpose is liable for
interference with other’s groundwater use if
1. the withdrawal causes unreasonable harm through
lowering of the water table;
2. the groundwater occurs in a distinct under-
ground stream;
3. the withdrawal of water has a substantial effect
upon a stream, river, or lake.40
Priority System (Prior Appropriation). In the West, a
uniquely American water use rule called the Prior
Appropriation Doctrine gradually supplanted riparian
principles for both surface and groundwater. In contrast
to riparian doctrines, the acquisition of water rights does
not depend upon the ownership of contiguous or overlying
land. Water rights vest by appropriating the water and
putting it to beneficial use and accrue on a first in time, first
in right, basis. Furthermore, water rights are quantified,
can be lost through nonuse, and are transferable, as long
as other water rights holders suffer no harm.
Prior appropriation developed in the mining camps of
the Sierra Nevada during the California gold rush of the
1840s. As discussed before, the nature of mining operations
and federal ownership of western lands were incompatible
with the riparian doctrine for three reasons: (1) Under
the riparian system, water rights accrued only to the
owners of land. The miners, however, did not own the
land they mined; it belonged to the federal government;
(2) Mining operations were often conducted remotely from
waterbodies requiring off-stream diversions that violated
riparian prohibitions of off-tract transfers of water.41 (3) In
contrast to riparian doctrines, Appropriation provided
quantifiable water rights that were enforceable and
transferable. These attributes fostered predictability of
planning and investment.42
Appropriation arose first as a common law doctrine,
effectively ratifying water use practices in the mining
camps. Over time, the doctrine was codified and even
incorporated into some state’s constitutions.43 Most
Western states have extended some version of the
Prior Appropriation Doctrine, to groundwater, by statute,
making it the primary doctrine for groundwater use in the
West.44
The Appropriation rules for groundwater are essen-
tially the same as those for surface water. In case of a
dispute, priority of use is the determining factor in allocat-
ing water among competing users; junior claimants may
have their supply of groundwater diminished or eliminated
by senior claimants in times of scarcity.45 The realities of
hydrogeology, including the time lag between the start of
pumping and deleterious effects on water levels, can make
40
Restatement (Second) of Torts § 858 (1979).
41
Sax, supra note 8, at 282
42
Id. at 286
43
Id. at 382
44
Id. at 282; Murphy, supra note 1, at §§ 20.04; 20.07.
45
Clesson Kinney, The Law of Irrigation and Water Rights and
Arid Region Doctrine of Appropriation of Waters 598 (1912);
Atchison v. Petersen, 87 U.S. 507 (1874); SAX, supra note 8, at
382.
632 QUANTITATIVE GROUNDWATER LAW
application of the doctrine difficult to enforce in the case
of groundwater.46
Active Management and Regulation of Groundwater
Permit Statutes (‘‘Regulated Riparianism’’)47 . Although
some Eastern states enacted groundwater statutes more
than a century ago, such legislation did not become
common until the second half of the twentieth century.
As of 1996, eighteen states had enacted regulated riparian
systems for surface water sources, generally including
underground water resources as well. Two other states
apply a regulated riparian system only to underground
water sources.48
The common characteristic of such legislation is the
requirement of a permit to withdraw groundwater based
upon reasonableness of use.49 An administrative agency is
responsible for both the decision to grant or deny a permit
and, at least initially, dispute resolution.50
These statutes were not originally introduced as a
radical revision of the water law of a particular state
but emerged gradually through a process of discrete
initiatives in the form of well-spacing regulations,
prohibitions of wasteful pumping, or licensing of major
withdrawals. In several states, it remains unclear
whether the law would be better described as basically
riparian rights with limited legislative alterations or
as comprehensive regulatory schemes referred to as
‘‘regulated riparianism.’’51
Supply Side (Conjunctive Use) Management. The Orange
County (California) water district (OCWD) takes a
novel approach to groundwater allocation. Instead of
imposing restrictions on pumping, the district focuses on
maintaining groundwater supplies by recharging aquifers
with imported surface water. No attempt is made to limit
groundwater pumping directly or prevent waste. In fact,
OCWD is forbidden from directly limiting the amount of
groundwater an individual user may withdraw, although it
may discourage use by levying a ‘‘basin equity assessment’’
against pumpers who withdraw more than a percentage
of groundwater set by the district. In addition, the OCWD
does not attempt to manage groundwater withdrawals to
prevent or minimize well interference.52
The drawbacks to this type of management model
include dependence upon imported recharge water and
the cost of transmission and recharge facilities. These
costs, however, are largely offset by maintaining a stock
of relatively cheap local water in the form of groundwater
storage.53
46
Kazman, supra note 7, at 272; DELLAPENNA, supra note 37,
at 7.
47
Dellapenna, supra note 37, at 7
48
Model Water Code, supra note 21, at vi.
49
Id. at viii.
50
Dellapenna, supra note 37.
51
Model Water Code, supra note 21, at vi.
52
Sax, supra note 8, at 454 (citing William Bloomquist, Dividing
the Waters: Governing Groundwater in Southern California, ICS
Press, 1992).
53
Id. at 455.
NATURE OF GROUNDWATER DISPUTES
Most groundwater disputes are the product of a race-
to-pump mentality referred to as ‘‘the tragedy of the
commons.’’54 When many users tap the same aquifer,
it becomes a common property resource. Without social
or legal limits on water use from the common aquifer,
there is no incentive to conserve because the conserver
does not enjoy an exclusive right to the water that is
saved.55 For example, under the Reasonable Use Doctrine,
two neighboring landowners are free to withdraw all the
groundwater they can put to beneficial use upon their own
land. The reasonableness of the use is judged solely as it
relates to the purpose of such use and not its effect upon
others or the sustainability of the resource.56
The race-to-pump has produced widespread declines in
potentiometric surfaces and in severe cases, groundwater
mining57 that, in turn, led to well interference, land
subsidence, saltwater intrusion,58 and diminished stream
flow. Unwise groundwater use may even threaten
endangered species by desiccating springs.59 In addition
to environmental damage, these phenomena impose
additional costs upon water users, ranging from a few
thousand dollars incurred by individual well owners for
well deepening and increased electrical costs to millions of
dollars to provide alternative water supplies for municipal
systems threatened by saltwater intrusion.60
54
William H. Rodgers, Jr., Environmental Law 39 (West 1994)
[citing Garrett Hardin, The Tragedy of the Commons, 162 Science
1243 (1968)].
55
Tom Tietenberg, Environmental and Natural Resource Eco-
nomics 207 (1988)
56
Hornsberger, Oeltjen, & Fischer, Groundwater: From Windmills
to Comprehensive Public Management, 52 Neb. L. Rev. 179 at
205 (1973).
57
Driscoll, supra note 24, at 64 (The potentiometric surface is an
imaginary line representing the hydrostatic head throughout all
or part of a confined aquifer and is the level to which water will
rise in a tightly cased well. Unwise groundwater use practices,
such as improper well spacing, may draw down the potentiometric
surface without actually dewatering the aquifer); Kazman, supra
note 7 (Groundwater mining results when the rate of withdrawal
exceeds the rate of recharge to an aquifer, decreasing the volume
of groundwater held in storage. This phenomenon is especially
acute in arid regions where aquifers have little to no natural
recharge. Without artificial recharge, it may take thousands
of years for such an aquifer to regain its prepumping storage
volume).
58
J. Marshall Lawson, Transboundary Groundwater Pollution:
The Impact of Evolving Groundwater Use Laws on Salt Water
Intrusion of the Floridian Aquifer along the South Carolina-
Georgia Border, 9 S. C. Env. L. J. 85 (2000).
59
Ben F. Vaughn IV & Peter M. Emerson, Protecting the Edwards
Aquifer; An Efficient and Ecological Alternative, in Water
Marketing: The Next Generation 167 (Terry L. Anderson & Peter
J. Hill eds., 1997) (Explosive population growth and unrestricted
pumping of groundwater from the Edwards aquifer in central
Texas is depleting the flow of water to the aquifer’s discharge
areas threatening several endangered species with extinction
and threatening economic interests dependent on plentiful water
supplies. This realization has prompted legislators to rethink the
state’s longstanding adherence to the Rule of Capture).
60
Lawson, supra note 58, at 95 [Saltwater intrusion of the
Floridian aquifer in the vicinity of Savannah, Georgia, forced

Groundwater disputes may involve adjudication of the
denial for new permits to pump groundwater or limitations
and conditions upon existing permits.61 In the case of
property damages from groundwater use, courts may apply
groundwater law (common law or a statute on point) or
even tort law (e.g., nuisance or negligence theories) to the
facts of a case to determine pumping rights or fix remedies
in the form of an injunction or money damages.62
Plaintiffs may be private citizens, corporations, or
public entities such as municipalities seeking to define,
expand, or defend rights to groundwater. Depending
on the jurisdiction, groundwater disputes, not resolved
by administrative processes, may be appealed to higher
state courts.
In addition to state common law and administrative
law, federal law may come into play if groundwater use
affects federal water rights claims,63 impacts a federal
statute, such as The Endangered Species Act,64 or when
groundwater use has an interstate dimension such as
transportation of groundwater across state lines.65
LEGAL REFORM
Until recently, American groundwater law has been
a hodgepodge of outdated common law doctrines that
lacked an effective mechanism for allocating supplies on
a sustainable basis and dealt only with disputes after
the fact, during litigation. The need for reform prompted
proposals for statutory models that can be roughly divided
between emerging market-based approaches based upon
the movement of water to higher value uses,66 on the
one hand, and command and control regulatory schemes
restricting water use, on the other.67
Regulatory proponents believe that agency experts
are the best suited to allocate the limited supplies
in a sustainable fashion. In their eyes, market-based
approaches to natural resource management inevitably
Public Service Districts on Hilton Head Island, South Carolina,
to develop alternative water supplies (AWS) for the island in
the form of transmission lines to the Savannah River and the
construction of a deep well and desalination facility to treat
heavily mineralized water from deeper aquifers. The total cost of
AWS was estimated at $24,950,000.00).
61
See, e.g., Baker v. Ore-Ida Foods, Inc., 513 P.2d 627 (Idaho
1973).
62
See generally, Adams v. Lang, 533 So.2d 89 (Ala. 1989);
Friendswood Development Co. v. Smith Southwest Industries,
Inc., 576 S.W.2d 21(Tex. 1978); Finley v. Teeter Stone, Inc. 248
A.2d 106 (Md. 1968); Restatement (Second) of Torts § 858(1)(a).
63
See, e.g., Cappaert v. United States, 426 U.S. 128 (1976).
64
16 U.S.C.A. §§ 1531–1534 (1982).
65
Vaughn & Emerson, supra note 59, at 177; Sporhase v.
Nebraska, ex rel. Douglas, 458 U.S. 941 (1982) (The U.S.
Supreme Court holding that a Nebraska statutory restriction
on the interstate transportation of its groundwater violated the
Commerce Clause of the U.S. Constitution); See also U.S. Const.
art. I, § 10, cl. 3; art. III, § 2. cl. 1,2.
66
Vaughn & Emerson, supra note 59, at 167; Terry L. Anderson &
Pamela Snyder, Water Markets: Priming the Invisible Pump 161;
Tom Tietenberg, Environmental and Natural Resource Economics
203 (1988); James E. Kundell & Diana Tetens, Carl Vinson Inst. of
Gov’t, Whose Water Is It?: Major Water Allocation Issues Facing
Georgia 9 (1988).
67
See generally, Model Water Code, supra note 21.
QUANTITATIVE GROUNDWATER LAW 633
lead to competitors vying to monopolize water rights
and, thus, deprive others of access to water sup-
plies.
Market proponents, on the other hand, argue that
administrative control does not end competition for water
but only shifts competition from the market to the
political arena thereby promoting uncertainty that tends
to work against meaningful conservation.68 They also
decry the assumption long held by legal authorities
that control of the production of water, like alcohol,
must somehow be tied to the end use of the product
and not related to the valuation of the marketplace.69
The more economical and less environmentally harmful
choice to them is a system of tradable property rights
in groundwater based upon either a share system or a
seniority system.70 This type of system would allow water
to seek its highest value use, benefiting both buyers and
sellers and minimizing government regulation with its
attendant costs.
Others would like to see a combination of the two
models, market incentives with government oversight
to protect outside parties and the general public from
harmful side effects.71 Such oversight could include zoning
restrictions, assignment of quota rights in common pools,
and the right to receive money damages for economic harm
to individual water users.72
CONCLUSION
Although groundwater law has progressed beyond the
ancient Rule of Capture in most jurisdictions, it remains
far from the nimble and pristine law required for the
wise management of groundwater resources. Effective
groundwater law of the future must focus on sustainable
use of the resource within the context of both local
and regional hydrogeologic realities, a formidable task,
given the complexities of hydrogeology and political
impediments to meaningful legal reform.
The law should encourage efficient water use by
providing quantifiable and transferable property rights in
water, and government should play the role of gatekeeper
in maintaining environmental integrity and access to
water for newcomers. Above all, water should no longer
be regarded as so plentiful that it is regarded as a free
good or so precious that it can be assigned no value.
Where demand exceeds thresholds the environment can
safely bear, as in mining or saltwater intrusion, consumers
should pay for the realistic cost of alternative water
supplies. Realistic water pricing combined with sound laws
incorporating the appropriate mix of market incentives
and regulation would foster both conservation and the
beneficial transfer of water from areas of abundance to
areas of scarcity.
Regardless of the mix of regulation and economic
incentives, wise use of groundwater in the future will
68
Kazman, supra note 7, at 278 (Citing J. Hirshleifer et al., Water
Supply Economics, Technology, and Policy 35 (1960)).
69
Id. at 283.
70
Vaughn & Emerson, supra note 59, at 180.
71
Kazman, supra note 7, at 367 (Citing J. Hirshleifer et al., Water
Supply Economics, Technology, and Policy 364 (1960)).
72
Id. at 337.
634 ISLAMIC WATER LAW
require the education and cooperation of stakeholders, and
also integrating the law with sound scientific, economic,
and technological principles.
ISLAMIC WATER LAW
A. ZAHARUDDIN
S. SABRI
University of Malaya
Petaling Jaya Selangor,
Malaysia
ISLAMIC WATER LAWS
Islam covers all aspects of human life. It regulates the
relationships among God (Allah), man, and nature. It is
based on the recognition of the Creator and of human
submission to His will. Muslims believe that everything
originates from the One God and everyone is responsible
to Him. According to Islam, Allah created nature for the
benefit of humans. The relationship between humans and
nature is based on harmony; humans are urged to explore
and use natural resources in a sustainable manner.
Water is considered one of the most profound elements
in Islam. Water is also necessary for cleaning one’s home
and personal effects, as well as for general hygiene. It is
indispensable to agriculture and industry: He it is who
sends down water from the sky. With it, we bring forth
plants of every kind (6:99). It cannot be denied that all
human beings rely on water for life and good health, but
for Muslims, water is first and foremost, a social good in
Islam. It is also regarded as a blessing from Allah that
gives and sustains all life in this world. Furthermore, the
word ‘‘water’’ appears sixty-three times in the holy book of
Muslims, Al-Quran. This indicator shows the importance
of water in our daily life.
Before the coming of the Prophet Muhammad, there
were no standard water regulations in the Arab world. The
only guide concerning water laws was through customs
practiced by tribes. There are four fundamentals in Islamic
law, the first three can be considered the roots of Muslim
dogma. The first is the Holy Quran, the divine revelation
from Allah to humans through the Prophet Muhammad.
It consists of 114 suras (chapters) and 6666 words. It also
considered the basis for all legislation.
Second are the Sunna and the Hadith, which represent
the sum total of habits or general pattern of life of the
Prophet Mohammad, inclusive of his word, acts, and tacit
approval. Third, is the Ijma, which means the universal
consensus of opinion of the nations or Muslim community.
And finally, Qiyas or deduction by legal analogy. It consists
of the following precedents in deciding new cases, which
have not been discussed or found before.
WATER RIGHTS IN ISLAM
In Islam, water is considered a gift from God, so no
individual literally owns it. Humans act as the stewards
of water as well as other resources that belong to the
community. The environment is protected from humans
by specifics injunctions against upsetting its natural order
through pollution or other activities. This is to ensure that
Allah’s gifts are available to all living things in the present
and future.
Although humans are the most favored creation, we
are also responsible for ensuring that water is available to
all living things. Allah commands believers to ‘‘make not
mischief on earth.’’ (2:11); this means that we cannot spoil
or degrade natural resources. The prophet Mohammad,
very sensibly, forbade urination into stagnant water
and advised guarding against this practice. This shows
how Islam has underlined that water sources should be
guarded from any contempt that can pollute it. This opens
the door for penalties or punishment in modern legislation
for those who disobey. Apart from that, waterside co-
owners who enjoy the right to use water should care
for and maintain water sources. They have to bear the
burden of maintenance and cleaning operations. The
expenses can be taken from taxes or special funds for
that purpose.
Muslims believe that ensuring social justice is the
cornerstone of Islam. The recognition of water as a vital
resource, to which everyone has the right to a fair share,
is emphasized by the following hadith, which effectively
makes water a community resource to which all, rich
or poor, have a right: ‘‘Muslims have a common share
in three things, pasture, water, and fire’’, as narrated by
Abu Daud.
Apart from that, animals cannot be allowed to die of
thirst, and the water that remains after humans quench
their thirst must be given to them. The immense value of
giving water to any creature is reflected by the following
hadith: ‘‘A prostitute was forgiven by Allah because she
took off her shoe and tying it with her head cover and
drew out some water from a well to be given to a
panting dog passing by that was about to die of thirst.
So Allah forgave her because of that,’’ as narrated by
Al-Bukhari.
The Al-Quran notes that the gift of water is for flora
as well: ‘‘vegetation of all kinds’’ (6:99) is nourished by
rainwater that Allah sends down. This verse supports the
statement that water is made available by Allah so that all
life should receive support according to its needs, including
humans, animals, and plants. As in Islam, humankind
has the first right to resources that Allah has provided for
its creation. It is well accepted by Islamic scholars (1)
that the priority rights of the use of water are first
the right of humans to quench their thirst; second, the
right of cattle and household animals; and third the right
of irrigation.
Nevertheless most Islamic scholars have concluded that
individuals or groups have the right to use, sell, and
recover the value added costs of water. These judgments
are based totally on two hadiths: the first, about Othman,
the third caliph, who purchased a well at Ruma (a place
near Medina), proves that wells can be owned and traded
(2) and secondly, as Prophet Muhammad said, ‘‘It is better
to go to the wood and cut and sell lumber to feed himself
than to beg people for help,’’ narrated by Muslims. This

implies that common property resources such as wood and
water can be sold and traded (3).
In his time, the Prophet Muhammad discouraged the
selling of water and even forbade the sale of excess water.
As noted, he also encouraged Othman to buy the well at
Ruma and give away its water free. These examples reflect
the prophet’s desire for the poor and weak to have access to
water. Apart from that, he encouraged people to work for
a living, even by taking wood (a free natural resource) and
selling it; a number of Islamic scholars believe it should
also be applied to water, where we have the right to use,
trade, and sell.
As narrated by Abu Hurairah, Allah’s Apostle, said, ‘‘No
doubt, you had better gather a bundle of wood and carry
it on your back (and earn your living thereby) rather than
ask somebody who may give you or not.’’ Obviously, water
in its natural state, such as a river or a lake, cannot be
bought or sold. However, most prominent Muslim scholars
agreed that if infrastructure and knowledge have been
invested to withdraw it, for instance, a treatment and
distribution system to convey it to people’s homes, then
the water utility has the right to recover its costs.
To prevent anyone new from diminishing the water
flow, Islam has underlined a principle that entitles canals
or wells or and any other sources of water that entail
the ownership of a certain amount of adjacent land. This
is known as harim or forbidden area. In this area, there
should be no development such as land or tree cutting; it
should remain as it is. Most schools of thought in Islam
proclaim that no uniform size for a harim can be fixed
and that the rules sanctioned by local customs must be
adhered to, even in a region of 3 meters for a small well
up to 100 meters for a spring.
Irrigation Regulations
The general principles of irrigation are that no one may
alter an established irrigation system. Water may be
drawn in any way, provided this does not entail any
derogation of the lawful owner’s rights and privileges. The
assent of the waterside dwellers must be obtained, and
the irrigation rights of other parties must be considered.
Lower lying plots of ground are supposed to receive water
from natural flows from upstream plots. The owner of the
lower plot may not erect any barrier likely to obstruct the
natural flow of water. Likewise, the owner of the upper
plot may not do anything likely to harm the lower plot (5).
As narrated by Abdullah bin Az-Zubair,
An Ansari man quarreled with Az-Zubair in the presence of the
Prophet about the Harra Canals which were used for irrigating
date palms. The Ansari man said to Az-Zubair, ‘‘Let the water
pass,’’ but Az-Zubair refused to do so. So, the case was brought
before the Prophet who said to Az-Zubair, ‘‘O Zubair! Irrigate
(your land) and then let the water pass to your neighbor.’’ On
that the Ansari got angry and said to the Prophet, ‘‘Is it because
he (i.e., Zubair) is your aunt’s son?’’ On that the color of the face
of Allah’s Apostle changed (because of anger) and he said, ‘‘O
Zubair! Irrigate (your land) and then withhold the water till
it reaches the walls between the pits round the trees.’’ Zubair
said, ‘‘By Allah, I think that the following verse was revealed
on this occasion’’: ‘‘But no, by your Lord they can have No faith
until they make you judge in all disputes between them.’’ (4.65)
ISLAMIC WATER LAW 635
In addition Islam proclaims water conservation, and
it is considered a fixed concept of Islamic teaching. A
Muslim is ordered to be economical with water even if he
is taking his water from a fast flowing river. The Prophet
Muhammad teaches us not to overdo even in worshipping
Allah; for instance, he uses only a handful of water in
taking his ablution. Further more, as narrated by Anas,
The Prophet used to take a bath with one Saor up to
five Mudds (1 Sa’ is equal to 4 Mudds) of water and used
to perform an ablution with one Mudd of water. As in
bathing, he also used a single pot of water. As narrated by
‘Aisha (one of his wives), The Prophet and I used to take a
bath from a single pot called a ‘Faraq.
CONCLUSION
lslam is the religion of all times and places. It is a perfect
system of temporal values. By practicing its laws, Muslims
all over the world attain spirituality and also the pinnacle
of all other glories. It was proven that the religious
precepts of Islam do not represent an obstacle for efficient
management of water resources; on the contrary, proper
use of Islamic principles could significantly enhance water
management practices in the countries concerned.
Before it came to mean simply law, the Arabic word
sharia denoted the law of water (1). Therefore, it is not
surprising that a detailed examination of the Quran and
the Hadith shows that Islam makes a remarkable number
of specific statements about water management. It is
because Islam rose and developed in a desert area where
water resources were extremely important and always
considered sacred. It is also connected with the nature of
Islam as a monotheistic religion that sought to regulate the
behavior of humans according to the commands of Allah.
Actually, there is no major contradiction between what
Islam says about the laws of water and the emerging
international consensus on the issue. Islamic water laws
are not that unique; some of the same principles could be
derived by studying other faiths, their holy books, and the
lives of their prophets. The major differences existed and
were practiced more than 1400 years ago; they have proven
adequate, applicable, and practical in our daily life. It was
noted that Islam is very flexible and can accommodate
all concerns regarding natural resource management,
including water. Furthermore, Islamic principles for water
management are completely compatible with the Dublin
International Conference on Water and Environment and
other accepted principles. In addition, Islam considers
the protection of biological biodiversity, as well as water
quantity and quality.
BIBLIOGRAPHY
1. Mallat, C. (1995). Water in the Middle East. I.B Tauris, New
York.
2. Kitab Al-muslim (1967). Darul Nada, Kuala Lumpur.
3. Yusof Ali, A. (1977). The Holy Quran: Text, Translation and
Commentary. American Trust Publication for The Muslim
Student Association of the United States and Canada,
Plainfield, IN.
636 TRANSBOUNDARY WATERS IN LATIN AMERICA: CONFLICTS AND COLLABORATION
4. Zouhaili, O. (1992). Al-Fiqh wa-Dalalatuh (Islamic Jurispru-
dence and its proof). Dar El-Machariq, Damascus.
5. Querry, A. (1872). Recueil Des Lois Concernant Les Musulmans
Schytes. Vol. 2, Imprimerie Nationale, Paris.
READING LIST
Agwan, A.R. (1997). Islam and the Environment. Synergy Books
International, Kuala Lumpur.
Caponera, D.A. (1973). Water Laws In Moslem Countries. FAO
Publications 20, no. 1, Organisation. Food and Agriculture
Organisation, Rome
Faruqui, N.I. (2001). Water Management in Islam. United Nation
University Press, Tokyo.
http://www.usc.edu/dept/MSA/fundamentals/hadithsunnah.
TRANSBOUNDARY WATERS IN LATIN
AMERICA: CONFLICTS AND COLLABORATION
SCOTT WHITEFORD
ALICIA JIMENEZ
Michigan State University
East Lansing, Michigan
Tensions over freshwater resources may become more
frequent as pressures on water resources grow due
to increasing water scarcity, degrading water quality,
rapid population growth, unilateral water development,
and uneven levels of economic development. As water
resources become increasingly overallocated and used, the
potential for conflict between nations with competing pri-
orities and management strategies grows. Despite many
obstacles, several international organizations are propos-
ing that instead of being zones of conflict, shared water
resources can provide a basis for cooperation and benefit-
sharing, provided that threats to international waters are
recognized and collaborative structures created. In the
largest study of transnational water conflict and cooper-
ation, it was found that cooperative interactions between
riparian states over the past fifty years have outnumbered
conflictive interactions by more than two to one (1).
Acknowledging the benefits of cooperative water
management frameworks, policy makers have developed
guiding principles and laws for international freshwater
management. On a smaller scale, regional bodies and
individual governments have developed protocols and
treaties governing the management and protection of
specific international water bodies (2).
In the Americas, there are approximately 70 interna-
tional basins shared by Latin American countries (32 in
North America and 38 in South America). Of those, 15
of the North American international basins and six of
the South American international basins are governed by
international treaties (2). These treaties refer to agree-
ments where there is a concern with water as a scarce
or consumable resource, a quantity to be managed, or an
ecosystem to be improved or maintained (see Table 1).
Although treaties and agreements of cooperation exist,
countries of the Americas face a great challenge in collab-
orating to achieve sustainable development on both sides
of their borders. This is particularly important where
the actions of one nation can directly or indirectly affect
the well-being of its neighbors. Frequently, projects that
threaten water quality are located near international
borders and create winner–loser confrontations. These
situations generate serious international conflicts, some-
times violent, which may extend for years. To resolve
these types of prolonged conflicts, collaborative agree-
ments are negotiated which facilitate shared water and
land management. This article presents examples of con-
flicting situations and cooperative efforts among Latin
American countries in North America, Central America,
and South America. This article examines key examples of
binational development that has threatened the quality of
water used by two nations and created binational conflict
and negotiation.
NORTH AMERICA: MEXICO–U.S. BORDER
In the U.S.–Mexico border region, water scarcity is a
growing problem heightened by drought, rapid population
growth, tourism, urbanization, and agriculture. The
border extends almost 2000 miles and includes multiple
watersheds, diverse ecological zones, political units, and
a range of economic activities. The two nations have
developed a set of institutions to manage water conflict
which we do not examine in this article. At the end of this
section, we present a list of significant binational disputes
and negotiations.
The following is a brief overview of one of major conflicts
between the United States and Mexico, the conflict over
water quality at the lower end of the Colorado River.
Because Mexico is down stream on the Colorado River,
which provides much of the water for the western United
States, the quality and quality of water flowing from the
United States to Mexico has been the subject of dispute and
international litigation. See Table 1 for the many treaties
written to govern the border water resources between
these countries. Although both countries have developed
institutions to negotiate the disputes over water rights and
responsibilities, the challenge is almost overwhelming,
given that the two countries have very different water
laws, national institutions, and constituencies (3).
Water conflicts over water quality in the border region
arose because of the salinity from drainage water coming
into the Colorado from irrigated fields in the United States
and then taken from the Colorado for irrigation in the
Mexicali Valley (Mexico). This valley is located on the
western area of the United States- Mexico border and is
one of the richest agricultural zones in North America. The
valley draws water from the Colorado River and also from
the Mexicali-Mesa de Andrade aquifer that transcends
both regions and which is also subject to international
dispute. Until recently, the Mexican government has had
the dominant role in managing water for both drinking
and irrigation in Mexicali Valley; nonetheless, people in
Mexicali mobilized for their water rights and put pressure
on their local and national governments to negotiate
with the United States to protect surface water. The
negotiations led to the introduction of water quality control
that resolved the crisis. Nevertheless, Mexican farmers
 TRANSBOUNDARY WATERS IN LATIN AMERICA: CONFLICTS AND COLLABORATION 637

are periodically plagued by discharges of poor quality
water (3).
Water of the Colorado River is governed by interna-
tional agreements, but this is not the case for groundwater
which was not a source of conflict until the end of the twen-
tieth century. It was assumed to be in great supply and of
high quality, but conflicts have arisen with the paving of
the irrigation canals on the American side of the border
that had been recharging the aquifer pumped by farms on
the Mexican side of the border. The quality of the water
in the aquifer is also being questioned after recent studies
that showed high levels of pesticides and salts. Binational
efforts to resolve the groundwater conflicts are beginning,
but cooperation between the two countries over groundwa-
ter is still being negotiated. Groundwater is not the only
transnational water problem being negotiated between the
United States and Mexico. Other issues include conflicts
over water of the Rio Bravo/Rio Grande; pollution of the
Rio Bravo, Tijuana, and Nogales by urban and industrial
water; and the construction of radioactive waste dumps

Table 1. Transboundary Water Treaties in the Americas

NORTH AMERICAb

Total Treaty
Basin Area Date Basin Signatories Treaty Name

Artibonite 8,800 km2 02-20-1979 Frontier or shared Dominican Treaty of peace, friendship, and
waters Republic; Haiti arbitration between both
countries.
Candelaria 12,800 km2 04-10-1987 Frontier or shared Guatemala; Mexico Agreement between both countries
waters on the protection and
improvement of the environment
in the border area
Coatan achute 2,000 km2 04-10-1987 Frontier or shared Guatemala; Mexico Agreement between both countries
waters on the protection and
improvement of the environment
in the border area
Colorado 655,000 km2 07-16-1994 Colorado United States of Minute No. 291 of the International
America and Boundary and Water
Mexico Commission (IBWC) concerning
improvements to the conveying
capacity of the international
boundary segment of the
Colorado River.
07-18-1985 Frontier or shared Agreement of cooperation
waters regarding pollution along the
inland international boundary by
discharges of hazardous
substances
08-14-1983 Frontier or shared Agreement on cooperation for the
waters protection and improvement of
the environment in the border
area
08-30-1973 Colorado Agreement on the permanent and
definitive solution to the salinity
of the Colorado River Basin
(IBWC Minute No. 242)
04-30-1973 Colorado Agreement extending Minute No.
241
07-14-1972 Colorado Agreement Minute No. 241
08-24-1966 Colorado Agreement concerning the loan of
waters of the Colorado river for
irrigation of lands in the Mexicali
Valley
11-14-1944 Colorado, Rio Treaty between both countries
Bravo del Norte, regarding the waters of those
Rio Grande, four rivers
Tijuana
11-21-1900 Colorado, Rio Boundary waters, extension of
Grande convention 03-1-1889
12-22-1899 Colorado, Rio Boundary waters, extension of
Grande convention 03-1-1889
12-2-1898 Colorado, Rio Boundary waters, extension of
Grande convention 03-1-1889
(continued overleaf )
 Table 1. (continued)
Total Treaty
Basin Area Date Basin Signatories Treaty Name

10-29-1897 Colorado, Rio Boundary waters, extension of

Grande convention 03-1-1889
11-6-1896 Colorado, Rio Boundary waters, extension of
Grande convention 03-1-1889
10-1-1895 Colorado, Rio Boundary waters, extension of
Grande convention 03-1-1889
03-1-1889 Colorado, Rio Convention on boundary waters
Grande
Grijalva 126,800 km2 04-10-1987 Frontier or shared Guatemala;Mexico Agreement on the protection and
waters improvement of the environment
in the border area
Hondo 14,600 km2 04-10-1987 Frontier or shared Guatemala; Mexico Agreement on the protection and
waters improvement of the environment
in the border area
Lempa 18,000 km2 04-9-1938 Lempa, Paz El Salvador; Treaty for the delimitation of the
Guatemala boundary between both countries
Massacre 800 km2 02-20-1929 Frontier or shared Dominican Treaty of peace, friendship, and
waters Republic; Haiti arbitration
Paz 2,200 km2 04-9-1938 Lempa, Paz El Salvador, Treaty for the delimitation of the
Guatemala boundary between both countries
Pedernales 400 km2 02-20-1929 Frontier or shared Dominican Treaty of peace, friendship, and
waters Republic, Haiti arbitration
Rio Bravo/Rio Grande 656,100 km2 11-13-1992 Rio Grande Mexico; United IBWC Minute No.
States of 289—observation of the quality
America of the waters along the U.S. and
Mexico border
11-10-1987 Rio Bravo-Rio Boundary waters agreement
Grande
07-18-1985 Frontier or shared Agreement of cooperation
waters regarding pollution along the
inland international boundary by
discharges of hazardous
substances
08-14-1983 Frontier or shared Agreement on cooperation for the
waters protection and improvement of
the environment in the border
area
10-24-1960 Rio Grande Agreement to proceed with the
construction of Amistad Dam on
the Rio Grande
11-14-1944 Colorado, Rio Treaty between both countries
Bravo del Norte, regarding the waters of those
Rio Grande, four rivers
Tijuana
02-1-1933 Rio Bravo/Rio Convention on the rectification of
Grande the Rio Grande (Rio Bravo del
Norte)
05-21-1906 Rio Grande Convention on the distribution of
waters of Rio Grande
11-21-1900 Colorado, Rio Boundary waters, extension of
Grande convention 03-1-1889
12-22-1899 Colorado, Rio Boundary waters, extension of
Grande convention 03-1-1889
12-2-1898 Colorado, Rio Boundary waters, extension of
Grande convention 03-1-1889
10-29-1897 Colorado, Rio Boundary waters, extension of
Grande convention 03-1-1889
11-6-1896 Colorado, Rio Boundary waters, extension of
Grande convention 03-1-1889
10-1-1895 Colorado, Rio Boundary waters, extension of
Grande convention 03-1-1889

638
 Table 1. (continued)
Total Treaty
Basin Area Date Basin Signatories Treaty Name

03-1-1889 Colorado, Rio Convention on boundary waters

Grande
San Juan 42,200 km2 03-22-1888 Frontier or shared Costa Rica; Award of the President of U.S. on
waters Nicaragua the validity of the treaty of limits
of 15 April 1858
Suchiate 1,600 km2 04-10-1987 Frontier or shared Guatemala; Mexico Agreement on the protection and
waters improvement of the environment
on the border area
Tijuana 4,400 km2 07-2-1990 Rio el Alamar, Mexico, United Boundary waters: San
Tijuana States of Diego/Tijuana. IBWC Minute No.
America 238
07-18-1985 Frontier or shared Agreement of cooperation
waters regarding pollution of the
environment along the inland
international boundary by
discharges of hazardous
substances.
08-14-1983 Frontier or shared Agreement on cooperation for the
waters improvement of the environment
in the border area
11-14-1944 Colorado, Rio Treaty between both countries
Bravo del Norte, regarding the waters of those
Rio Grande, four rivers
Tijuana
Yaqui 74,700 km2 07-18-1985 Frontier or shared Mexico; United Agreement of cooperation
waters States of regarding pollution of the
America environment along the inland
international boundary by
discharges of hazardous
substances
08-14-1983 Frontier or shared Agreement of cooperation for the
waters protection and improvement of
the environment in the border
area

SOUTH AMERICAa

Total Treaty
Basin Area Date Basin Signatories Treaty Name
2
Amazon 5,866,100 km 08-2-1988 Beni, Madeira, Bolivia; Brazil Exchange of notes constituting an
Mamoré agreement for the construction of
a hydroelectric plant in Cachuela
Esperanza, supplementary to the
agreement on economic and
technical cooperation
02-8-1984 Beni Bolivia, Brazil Agreement concerning the
Cachuela Esperanza
hydroelectric plant
07-3-1978 Amazon Bolivia, Brazil, Treaty for Amazonian cooperation
Colombia,
Ecuador,
Guyana, Peru,
Surinam,
Venezuela
05-22-1944 Amazon, Chira, Ecuador, Peru Declaration and exchange of notes
Tumbes, concerning the termination of the
Zarumilla process of demarcation of the
Peruvian-Ecuadorean frontier
Chuy 200 km2 03-11-1991 Not specified Brazil, Uruguay Complementary agreement to the
basic scientific and technical
cooperation agreement between
both countries on the area of
water resources
(continued overleaf )
639
 Table 1. (continued)
Total Treaty
Basin Area Date Basin Signatories Treaty Name

12-20-1933 Frontier or shared Brazil, Uruguay Convention regarding the

waters determination of the legal
status of Brazil and Uruguay
frontier
La Plata 2,954,500 km2 05-6-1997 Cuareim Brazil, Uruguay Complementary settlement to
the agreement of cooperation
for the use of natural
resources and development of
this basin
09-2-1995 Pilcomayo Argentina, Bolivia, Agreement constituting the
Paraguay trilateral commission for the
development of this basin
06-9-1995 Bermejo, Grande Argentina, Bolivia Agreement for the multiple uses
de Tarija of the resources of the upper
basin of the Bermejo River
and Grande de Tarija River
03-11-1991 Cuareim Brazil, Uruguay Agreement of cooperation for
the use of natural resources
and development of this basin
03-11-1991 Not specified Brazil, Uruguay Complementary agreement to
the basic scientific and
technical cooperation
agreement on water resources
06-29-1983 Pepiri-Guazu, Argentina, Brazil Decree No. 88.441, agreement
Uruguai for water resources
exploitation within the
Uruguay and Pepiri-Guaco
Rivers
05-17-1980 Pepiri-Guazu, Argentina, Brazil Treaty for the development of
Uruguai the water resources contained
in the border reaches of
Uruguai and Pepiri-Guazu
Rivers
10-19-1979 Paraná Argentina, Brazil, Agreement on Paraná River
Paraguay projects
02-26-1975 Uruguay Argentina, Statute of the Uruguay River
Uruguay
04-26-1973 Iguassu, Paraná Brazil, Paraguay Treaty concerning the
hydroelectric utilization of the
Paraná River owned in
condominium by the two
countries
04-7-1961 Uruguay Argentina, Treaty on the boundary
Uruguay constituted by the Uruguay
River
01-23-1958 Paraná Argentina, Agreement concerning the study
Paraguay of the utilization of the water
power of the Apipe Falls
01-20-1956 Acaray, Monday Brazil, Paraguay Agreement concerning a study
on the utilization of the water
power of the Acaray and
Monday Rivers
12-30-1946 Uruguay Argentina, Agreement concerning the
Uruguay utilization of the rapids of the
Uruguay River in the Salto
Grande area
06-1-1945/07-5-1939 Pilcomayo Argentina, Supplementary boundary
Paraguay treaties
12-20-1933 Frontier Brazil, Uruguay Convention for determination of
the legal status of the frontier
of both countries
01-5-1910 Plate Argentina, Protocol dealing with question
Uruguay of the jurisdiction of the River
Plate

640
 TRANSBOUNDARY WATERS IN LATIN AMERICA: CONFLICTS AND COLLABORATION 641

Table 1. (continued)
Total Treaty
Basin Area Date Basin Signatories Treaty Name
2
Lagoon Mirim 55,000 km 03-11-1991 Not specified Brazil, Uruguay Complementary agreement to the
basic scientific and technical
cooperation agreement on water
resources
07-7-1977 Juguarao, Mirim Treaty on cooperation for the
Lagoon utilization of the natural
resources and the development of
the Mirim Lagoon basin
04-26-1963 Mirim Lagoon Agreement on establishing an joint
commission for the development
of the Mirim Lagoon
12-20-1933 Frontier Convention on the determination of
the legal status of the frontier
between Brazil and Uruguay
Lake 111,800 km2 06-21-1993 Desaguadero, Bolivia; Peru Notas related to the creation of the
Titicaca-Poopo Poopó, Salar de Autonomous Binational
system Coipasa Authority of the basin
02-19-1957 Lake Titicaca Agreement concerning a
preliminary economic study of
the joint utilization of Lake
Titicaca waters
07-30-1955 Lake Titicaca Preliminary convention concerning
a study of the joint utilization of
Lake Titicaca
04-20-1955 Lake Titicaca Exchange of notes establishing a
joint commission for study of the
Puno–Guaqui railway line and
joint use of Lake Titicaca
07-17-1935 Lake Titicaca Preliminary convention for
exploitation of fisheries in Lake
Titicaca
06-3-1929 Arica, Tacna Chile, Peru Treaty between both countries for
the settlement of the dispute
regarding Tacna and Arica
Maroni 65,000 km2 09-30-1915 Maroni, France, Convention between France and
Marowinjine Netherlands the Netherlands to fix the
(French Guiana, boundary between Suriname and
Suriname, and French Guiana
Brazil)
a
Source: Reference 20.
b
Includes Central America and the Caribbean.

in Sierra Blanca, Texas; Ruidoso, New Mexico, a toxic
waste incinerator in Ciudad Juarez; and several toxic
waste dumps in the border region of south Texas. All of
these projects threaten the border environment. Mean-
while treatment plants have been built along the border.
Major sources of pollution such as the Rio Nuevo, that
flows from Mexicali to the Salton Sea in California, are
now being treated and are returning a much better quality
of water to the stream. Conflicts, negotiations, and coop-
eration will continue to be the pattern along this border
for years.
CENTRAL AMERICA
Despite the importance of transnational rivers in Cen-
tral America, they have not been the subject of extensive
diplomacy. Dam construction projects on the Usumanc-
inta, Salinas, and Pasión Rivers on the Mexico-Guatemala
border have generated both conflicts and cooperation. The
Mexican and Guatemala governments have signed a mem-
orandum of energy cooperation which has created great
concern among people who live in communities along the
rivers and are afraid of being displaced by their govern-
ments by the construction of new and bigger dams (4).
Community leaders have protested the lack of information
about future construction plans, especially in the context
of the Plan Puebla-Panama. The Plan Puebla-Panama
implementation, begun in 2001, framed economic inte-
gration and sustainable development for Central America
and the southern states of Mexico (5). Funding from the
World Bank and the Inter-American Development Bank
for the projects includes building dams on the border
rivers. In response to such controversial plans, 98 non-
governmental organizations (NGOs) from 21 countries
of the Americas and Europe and affected communities
have created a regional movement against dams (6). The
642 TRANSBOUNDARY WATERS IN LATIN AMERICA: CONFLICTS AND COLLABORATION
concern is focused on forced relocation of communities, the
destruction of valuable archaeological sites, and loss of
biodiversity (4).
Other major transboundary rivers in Central America
include the Rio Hondo between Mexico and Belize and
the San Juan River that divides Costa Rica and the San
Juan. Heavy use of pesticides in Belizean agriculture that
are killing fish and impacting coral reefs are creating
concern on the Mexican side of the river. Another type
of transboundary river problem, navigation rights, is
reflected in a dispute between Costa Rica and Nicaragua
over the San Juan River. The conflict started in 1998,
when Arnoldo Aleman, a former Nicaraguan president
used police to impose navigation fees on Costa Rican
citizens using the river on the Nicaraguan side. It was
only by the intervention of the Costa Rican government
that the fees were dropped, much to the relief of people
living on both sides of the river (7).
SOUTH AMERICA
Transboundary water management in South America is
very challenging. The region includes one of the largest
river basins in the world, the Amazon River Basin. The
region, known as Amazonia, includes more than 8000 km
of borders, including eight South American countries.
Its enormous natural, cultural, biological, hydrological,
mineral, forest, and medical resource richness has made
it an object of intensive exploitation that has endangered
the natural balance and health of the basin.
Another important international basin is the Orinoco,
located in the south part of this basin where Venezuela and
Guyana are located. The Orinoco is affected by gold mining.
In 1995, more than one million liters of cyanide waste were
spilled in the Omai and Esequibo Rivers in Guyana. The
impact of these activities and the contamination of the
zone’s hydrologic network affect at least 25% of the basin’s
indigenous population, including the following ethnic
groups: Pemon, Yanomami, Piaroa, Guahibo, Yekwana,
and 17 other indigenous peoples. There are no treaties or
agreements of cooperation on water quality between the
countries that share this basin.
In addition to the Amazon, other rivers in South
America play an important role in linking as well
as dividing countries in northern South America. The
Meta River that divides Colombia and Venezuela has
supported transportation of produce for centuries (8).
Sediments, caused by watershed degradation, create
serious difficulties for transportation on the Meta River
reducing its capacity for transportation. With funding
from the Inter-American Development Bank, a binational
dredging project of the Meta River has begun to increase
trade by reducing transportation cost, but the project
has been opposed by many stakeholders and conservation
groups on the grounds that no impact studies were carried
out and local populations had little input to the project.
Sovereignty and control over who uses rivers (sailing
rights) may be a source of conflict and/or cooperation.
Sailing rights in waters controlled by multiple countries
are a challenge for integration. An example of this
is the Orinoco-Amazonas fluvial interconnection project,
which has been promoted by Venezuela’s and Brazil’s
presidents, but integrating the Colombia has been difficult.
Colombia wants free sailing rights on the Orinoco,
without the approval of Venezuela and Brazil, to facilitate
transportation and trade. The Orinoco–Meta integration
is important for Colombia because it would provide a
corridor between the Pacific and Atlantic Oceans. Both
Venezuela and Brazil are reluctant to give Colombia
free access and have recommended doing the fluvial
interconnection gradually and in specific phases. To
open the waterway to commercial vessels will require
considerable dredging and construction in Colombia and
cooperation from its neighbors (9).
La Plata Basin, which is shared by five countries,
Brazil, Argentina, Paraguay, Bolivia, and Uruguay, is
also under threat. The Pilcomayo river, part of this
basin shared by Argentina, Bolivia, and Paraguay, has
been contaminated periodically with arsenic, cadmium,
and lead caused by spills of toxic waste containers from
Bolivian mining. In the trinational zone, the Pilcomayo
is an important source of water for indigenous peoples,
agriculture, and its unique wildlife. There are several
cooperative agreements for the water management of this
river (see Table 1).
The process to build a hydro-via, a water highway,
using the Parana and Paraguay Rivers is in its final
discussion phase (10). The Paraguay-Parana River Hydro-
Via is a plan of the five governments of the La Plata
Basin to build 2100 miles of river and canal systems
navigable by large barges. The project would significantly
reduce the transportation costs of commodities within and
beyond the region. For example, it would reduce the cost of
transportation of soybeans exported to Europe from South
America by half. However, the project was halted in 1997
due to the Rios Vivos Coalition’s efforts to demonstrate the
irreversible effects on this unique ecosystem, the Pantanal.
The Pantanal is the world’s largest tropical wetland
ecosystem formed by the Parana-Paraguay rivers (11).
The Pantanal is an ecological wonder shared by Bolivia,
Brazil, and Paraguay. The ecosystem of the region is based
on seasonal flooding of the major rivers, including the
transborder rivers; yet there is no trinational agreement
to protect the ecosystem and the people who depend upon
it. This unique region has serious problems caused by
deforestation, expansion of agriculture, contamination of
the water by pesticides and derivatives of combustible
alcohol production, and illegal hunting of endangered
species. There has been an increase in natural habitat
loss and a decline in the quality of life
South America has major several shared hydroelec-
trical dams; over the Parana River are two: Yacyretá
(Argentina and Paraguay) and the biggest dam in the
world, Itaipú (Brazil and Paraguay). Another is Salto
Grande, shared by Argentina and Uruguay over the
Uruguay River (10). Five more international dams on the
Uruguay and Parana border rivers have been under study.
The Yacyreta binational dam has had great impact
on native and rural populations, forcing them to move
away from their homes and farms. This mobilization
has affected the health of these populations, increasing
their risk of contracting malaria and other tropical
 UNITED STATES-MEXICO BORDER WATERS: CONVENTIONS, TREATIES, AND INSTITUTIONS
diseases. The Itapu dam has also had massive social
and environmental impacts. One of the most significant
impacts has changed the weather of the region periodically
creating semihurricane conditions. The building of dams
and sharing of electricity reflect a high level of cooperation
between the countries that share borders.
South America economic integration and the new
infrastructure, including highways and hydroelectric
dams in the southern region of South America, have also
generated conflicts over transboundary waters. One criti-
cism of the integration process is the lack of wide stake-
holder participation and the lack of information to the civil
society about these efforts. The projects mentioned before,
the Meta River canalization, the Orinoco–Amazonas flu-
vial interconnection, the Venezuelan–Brazilian electrical
interconnection, and the South Cone projects, among oth-
ers, are usually perceived as local or isolated national
efforts, without taking into account their continental
scope. In addition, according to Arocha (12), most of the
new infrastructural projects will produce considerable dis-
turbances in the natural and social environment, and most
likely, the indigenous population will be affected the most.
Several organizations, such as the United Nations
Global Environment Facility (GEF) propose a comprehen-
sive, ecosystem-based approach to managing transbound-
ary waters and their drainage basins; these are often called
‘‘international water projects’’(1). The goal of these organi-
zations is to build transboundary collaboration projects to
help each of the countries use the full range of technical,
economic, financial, regulatory, and institutional mea-
sures needed to operationalize sustainable use strategies
for transboundary waterbodies and contributing basins.
One example of a GEF international water project
in Latin America is the Bermejo River Basin of Bolivia
and Argentina. The GEF became interested in this basin
because it has excessive levels of sediment, important
transboundary biodiversity, and a binational commission
for developing of the basin. One of the objectives of
GEF was the involvement of stakeholder groups in the
basin to determine their sustainable development future.
They facilitated participatory transboundary diagnostic
analysis (TDA), a scientific-based assessment of the key
transboundary problems and their root causes. Originally,
16 dams were proposed for hydropower production
in the basin. This was quite controversial. However,
through public participation in the project, the binational
commission that was created to develop hydropower
transformed itself into a force to consider sustainable
development options. Three dams will still be pursued,
but the focus on the transboundary environment, strategic
processes for participation, and practical measures
consistent with sustainable development helped overcome
initial transboundary concerns and NGO opposition (1).
The future of transnational rivers in Latin America and
their role in enhancing sustainable development depends
on binational collaboration. The watershed and basin
agreements in place have generally facilitated negotiation
and found solutions of mutual benefit. In other transborder
water situations, mutually agreed upon conflict resolution
mechanisms and management plans have yet to be
developed. Until these agreements are in place, binational
643
management will continue to generate conflict. At stake
is the development of some of the most important yet
vulnerable areas on the continents. Fortunately, progress
is being made on almost every border.
BIBLIOGRAPHY
1. Uitto, J.I.D. and Alfred, M. (2002). Management of trans-
boundary water resources: Lessons from international coop-
eration for conflict prevention. Geogr. J. 168(4): 365–378.
2. UNEP, FAO, Oregon State University. (2002). Atlas of
International Freshwater Agreements. Kenya; USA.
3. Whiteford, S. and Cortez, A. (in press). Good to the last
drop: the political ecology of water and health on the
border. In: Globalization, Water and Health. L. Whiteford
and S. Whiteford (Eds.). School of American Research Press,
Santa Fe, NM.
4. Mesoweb. (2002). Maya sites to be flooded by Dam, Mesoweb
Reports. Available: http://www.mesoweb.com/reports.dam.
html.
5. Delgado, G.C. (2002). El Corredor Biologico Mesoamericano,
Tres Ecorregiones y COINBIO: esquemas del Banco Mundial
integrados a la politica nacional., Biodiversidadla.org.
6. Bellinghausen, H. (2002). During the Mesoamerican forum,
they demanded water, light and land for rural villages. La
Jornada. Mexico D.F.
7. Gonzalez, A.H. and Mauricio. (2002). Acuerdo evito choque
bilateral. La Nacion. San Jose.
8. Colmenares, G. (1997). Tratamiento binacional de asuntos
ambientales en regiones fronterizas. La experiencia Colombo-
Venezolana. CEFIR.
9. Nacional, E. (2000). Recomiendan realizar por etapas la
integracion de Orinoco-Amazonas. El Nacional.
10. Gudynas, E. (1998). La dimension ambiental de la integracion
fisica y energetica en el Cono Sur. Uruguay. CLAES.
11. IRN. (2001). Stop the Hidrovia in the Pantanal. International
Rivers Network (IRN).
12. Leon-Oliveros, R. (1997). Situacion actual y perspectivas de
las relaciones fronterizas de los paises miembros del grupo
Andino. CEFIR.
13. Arocha, M. (2001). Ambiente, proyectos de integracion fisica
en America Latina y desarrollo sustentable en Venezuela.
Analitica.com.
UNITED STATES-MEXICO BORDER WATERS:
CONVENTIONS, TREATIES, AND INSTITUTIONS
NANCY A. LOWERY
San Diego, California
SELECTED TREATIES AND CONVENTIONS
Cooperation over shared United States–Mexico waters
dates back to the Treaty of Peace, Friendship, Limits, and
Settlements, know as the Treaty of Guadalupe Hidalgo,
signed in 1848. This treaty established the international
boundary from the Gulf of Mexico along the Rio Grande to
El Paso, Texas, then west to the Pacific Ocean just south
of San Diego Harbor, a stretch of 3141 km. For 2001 km
of that border, the Rio Grande serves as the boundary
644 UNITED STATES-MEXICO BORDER WATERS: CONVENTIONS, TREATIES, AND INSTITUTIONS
line. This is a long and complex boundary with topography
ranging from coastal plains to mountain ranges and high
desert. The climate is predominately semiarid to arid, has
two major watersheds, the Rio Grande (called the Rio
Bravo in Mexico) and the Colorado River, many smaller
watersheds, and numerous groundwater basins. This was
a treaty of intent, not of specifics. The treaty did not deal
with details of the boundary line, management of water
between the two countries, fluctuation of the river courses,
water quality, or groundwater resources. Subsequent
agreements would have to deal with these issues.
The introduction of the railroad and irrigated agricul-
ture in the late 1800s spurred settlement, which required
that questions left unanswered by the 1848 Treaty be
resolved or at least addressed. Therefore several conven-
tions were enacted to solve disputes over the boundary
line, establish surveys, and fix boundary monuments to
officially demarcate the border (1). These include the Gads-
den Treaty of December 30, 1853 and the Convention of
July 29, 1882 (2).
Changes in the course of the Rio Grande and
Colorado rivers and the resulting fluctuations in the
international boundary were dealt with by the Convention
of November 12, 1884. This agreement established rules
for maintaining the boundary line, given changes in
the riverbed. The Convention to Avoid the Difficulties
Occasioned by the Reason of the Changes which Take
Place in the Beds of the Rio Grande and Colorado River,
March 1, 1889, established a binational commission, the
International Boundary Commission (IBC). The IBC’s
role was to apply the 1884 Convention rules and handle
disputes related to boundary waters. The IBC had both a
United States and a Mexican Section; each had a separate
commissioner appointed by the federal governments of the
respective countries.
None of these previously mentioned agreements dealt
with the apportionment of waters between the two
countries. By the end of the nineteenth century, however,
allocation issues could no longer be ignored. The growth
of irrigated agriculture on the upstream reaches of the
Rio Grande meant that in low flow years, farmers on the
Mexican side of the border did not receive sufficient water
to irrigate crops. By the 1890s, Mexico was pressing for
a solution to this problem, especially where agricultural
pressures were at their greatest, which was in the section
of the Rio Grande that forms the border between New
Mexico, Texas, and Chihuahua.
To alleviate stress in that region, the May 12, 1906
Convention Providing for the Equitable Distribution of the
Waters of the Rio Grande for Irrigation Purposes allocated
the waters of the Rio Grande above Ft. Quitman, Texas,
between the United States and Mexico. It guaranteed
Mexico 74 Mm3 (60,000 acre-feet) to be delivered at a
point just above Ciudad Juárez, Chihuahua, in accordance
with a monthly schedule. In exchange for that delivery,
Mexico waived any additional claims to the waters from
the upper stretch of the river to Ft. Quitman, Texas.
All water allocated under the 1906 Convention is for
irrigation; none is set aside for municipal or industrial
uses or for instream flows. As water demand has changed,
this allocation structure has had ramifications for the
region. The Convention also did not deal with water quality
issues or apportion groundwater supplies. It did, however,
provide for drought or catastrophic conditions. Stating
that should it be impossible to deliver the quantity of
water promised due to severe drought or destruction of
the delivery system, Mexico’s supply would be diminished
in the same proportion as the supply delivered to
U.S. irrigators.
In 1933, the two governments enacted the Convention
for the Rectification of the Rio Grande (Rio Bravo del
Norte) in the El Paso–Juárez Valley. This convention
established the Rio Grande Rectification Project to
manage the river in the increasingly developed Mesilla–El
Paso–Juárez Valleys for flood control and delivery of
treaty waters. It provided for joint construction, operation,
and maintenance, by the IBC, of the facilities needed for
these purposes, which entailed straightening a 155-mile
stretch of the river and was the first joint construction
treaty between the United States and Mexico.
Continued border growth in the early 1900s caused
the lower Rio Grande basin and the Colorado River to
experience water demand pressures similar to those that
had been felt in the upper Rio Grande basin 50 years
earlier, which led to the 1944 Treaty Relating to the
Utilization of Waters of the Colorado and Tijuana Rivers
and of the Rio Grande, considered the most important
United States–Mexico water treaty. This treaty expanded
the scope of cooperation between the two countries to
include issues related to border sanitation and, more
importantly, provided the legal framework for resolving
water disputes between the two countries. It replaced
the IBC with the International Boundary and Water
Commission (IBWC), called the Comision Internacional
de Limites y Aguas (CILA) in Mexico.
The new IBWC had expanded scope and authority
in line with the expanded scope of the 1944 Treaty.
It has the status of an international body, has two
Commissioners, appointed by the presidents of each
country, and permanent offices in El Paso, Texas, and
Juárez, Chihuahua. It operates under the Departments
of State of each country and has the authority and
responsibility to negotiate and carry out agreements
between the two countries regarding border water and
sanitation, as outlined in the treaties. These agreements
are called Minutes. Once approved by the United States
and Mexican governments, Minutes are binding on those
governments. As of March 2004, there are 311 Minutes (3).
The Minute process has been an effective means to
address serious border water issues, such as salinity,
untreated effluent discharges, and drought mitigation,
without having to renegotiate existing treaties or negotiate
new ones.
Additionally, the 1944 Treaty (4) sets out, in Article
3, priorities for the joint use of the international waters,
which would be used if the Commission were asked to
make a determination of priorities. In order of preferential
use, they are
• domestic and municipal uses,
• agriculture and stock raising,
• electric power,
 UNITED STATES-MEXICO BORDER WATERS: CONVENTIONS, TREATIES, AND INSTITUTIONS
• other industrial uses,
• navigation,
• fishing and hunting, and
• any other beneficial uses that may be determined by
the Commission.
The 1944 Treaty also apportioned the shared surface
waters, not already divided, between the two countries.
Waters of the Rio Grande–Rio Bravo from Fort Quitman
to the Gulf of Mexico are apportioned in the follow-
ing manner:
Mexico has the right to:
• all of the waters reaching the main channel of the
Rio Grande from the San Juan and Alamo Rivers,
including the return flows from the lands irrigated
from those two rivers;
• two-thirds of the flow of the main channel of the Rio
Grande measured from the Conchos, San Diego, San
Rodrigo, Escondido, and Salados Rivers and the Las
Vacas Arroyo, subject to the U.S. right to an average
431,721,000 cubic meters (350,000 af/yr) in cycles of
5 consecutive years; and
• one-half of all other flows in the main channel of
the Rio Grande downstream from Ft. Quitman not
specifically allocated under this Treaty to either of
the two countries.
The United States has the right to:
• all of the waters reaching the main channel of
the Rio Grande from the Pecos and Devils Rivers;
Goodenough Spring; and Alamito, Terlingua, San
Felipe, and Pinto Creeks;
• one-third of the flow reaching the main channel of
the river from the Conchos, San Diego, San Rodrigo,
Escondido, and Salados Rivers and the Las Vacas
Arroyo, providing that this third shall not be less than
431,721,000 cubic meters annually (350,000 af/yr)
as an average amount in cycles of 5 consecutive
years; and
• one-half of all other flows in the main channel of
the Rio Grande downstream from Ft. Quitman not
specifically allocated under this Treaty to either of
the two countries.
In the case of the Colorado River, under the 1944
Treaty, Mexico is to receive 1,850,234,000 cubic meters
annually (1.5 million af/yr), to be delivered in accordance
with schedules provided in advance by Mexico. Mexico is
also assigned any surplus waters not necessary for uses
in the United States arriving at the Mexican point of
diversion. The total annual amount of water delivered to
Mexico is not to exceed 2,096,931,000 cubic meters (1.7
million af/yr).
The amount of Colorado River water allocated to the
United States is not specifically mentioned in the 1944
Treaty. Those allocations are set out in the Colorado River
Compact of 1922. The compact allocates 18,495,000,000 m3
year (15 million acre-feet) to the compact States of Arizona,
645
California, Colorado, Nevada, New Mexico, Utah, and
Wyoming. The Compact, which came into effect before
the 1944 Treaty, maintains in Article III that if the need
arises for waters of the Colorado to be delivered to Mexico,
than Mexico’s share would come from excess flows. If
surplus waters are unavailable, then the deficit in flows
is to be shared equally by the states. Because of water
variability and increasing urban and agricultural reliance
on the Colorado River, supplying the allocated waters has
become a problem (5). The 18.5 Bm3 allocated under the
Compact and the 1.8 Bm3 assigned under the Treaty are
higher than the annual average flow of the river, which is
approximately 16.6 Bm3 or 13.5 million acre feet (6).
In allocating Tijuana River waters, provisions for
distribution are not laid out. The 1944 Treaty recommends,
however, that the Commission investigate all means for
equitable distribution of the waters between the two
countries. This investigation and all other exploration
of border surface water issues would be carried out by the
newly formed IBWC.
Finally, the 1944 Treaty allows for the construction of
dams, delivery structures, and flood control structures that
are necessary to fulfill treaty obligations. It determined
that these structures would be jointly constructed,
maintained, and operated, and the costs to each country
would be equal to the benefits provided. Since 1944, the
IBWC has been responsible for constructing, maintaining,
and operating two large dams and storage reservoirs,
Falcon and Amistad, numerous diversion and delivery
structures, international wastewater treatment plants,
and a surface water salinity treatment plant.
On August 29, 1963 the two governments signed
the Convention for the Solution of the Problem of the
Chamizal to resolve a 100-year-old boundary and land
dispute between the United States and Mexico. The Rio
Grande channel in the area of El Paso, Texas, and Juárez,
Chihuahua, had shifted periodically over the centuries,
causing approximately 600 acres to move back and forth
between the north and the south banks of the river.
The Convention settled this dispute by repositioning and
stabilizing 4.4 miles of the river, which transferred 437.18
acres from the United States to Mexico.
In 1970, the Treaty to Resolve Pending Boundary
Difference and Maintain the Rio Grande and the Colorado
River as the International Boundary between the United
States and Mexico was enacted. This Treaty provides for
the maintenance of the boundary line due to shifting river
courses, erosion, or other changes in the channel. It also
resolved all pending boundary disputes between the two
countries. The IBWC is responsible for carrying out the
provisions of the Treaty.
SELECTED BINATIONAL AGREEMENTS
There are several other agreements that were signed
by the United States and Mexico that are relevant to
managing water in the border region. These include the
La Paz Agreement and the side agreements of the North
American Free Trade Agreement.
The Agreement between the United States of America
and the United Mexican States on Cooperation for the
646 UNITED STATES-MEXICO BORDER WATERS: CONVENTIONS, TREATIES, AND INSTITUTIONS
Protection and Improvement of the Environment in the
Border Area (La Paz Agreement) was signed on August
14, 1983. The La Paz Agreement is the framework for
cooperation between the United States and Mexico on
protecting, improving, and conserving the environment
in a 100-kilometer area on either side of the border.
This Agreement deals with issues of water, soil, and
air pollution and provides for a system of emergency
notification.
Five technical annexes were established to deal with
specific projects of environmental concern, two of which are
water related. Annex I, Solution of the Border Sanitation
Problem at San Diego, California and Tijuana, Baja
California, and Annex II, Regarding Pollution of the
Environment along the Inland International Boundary by
Discharges of Hazardous Substances, were both enacted
in 1985. The framework set up by the La Paz Agreement
paved the way for future environmental cooperation
between the two countries. The 1992–1994 Integrated
Border Environment Program (IBEP), the Border XXI
Program, and the Border 2012 Program were developed in
conformance with the La Paz Agreement.
The North American Free Trade Agreement (NAFTA)
among Canada, United States, and Mexico became
effective on January 1, 2004. NAFTA uniquely included
side agreements on the environment. These agreements
established a Commission on Environmental Cooperation
(CEC) among the three signatories. CEC’s role is to protect
the environmental regulations of each country and to allow
individuals and governments to file complaints with the
Commission if they believe environmental laws are not
being enforced.
The NAFTA side agreements also established the
Border Environment Cooperation Commission (BECC)
and the North American Development Bank (NADBank).
BECC and NADBank are international organizations
whose goal is to protect and improve the environment
of the United States–Mexico border. BECC’s mandate
is to certify water, wastewater, and solid waste projects
within the border zone. This area is defined using the La
Paz Agreement boundaries of 100 kilometers on either
side of the border. Certification is based on a set of
engineering standards and economic and environmental
sustainability concepts. NADBank’s role as a development
bank is to fund projects certified by BECC. Both of these
institutions have played an integral role in water and
sanitation infrastructure and management in the border
region; due to the certification process, projects cannot be
built without BECC approval.
CURRENT SITUATION
The complex set of Treaties, Convention, Compacts,
and side agreements that laid the foundation for water
allocation and management in the United States–Mexico
borderlands have served the region well. Rapid growth,
however, has placed stress on both the resource and the
legal and institutional structures used to govern it. Most,
if not all, border water resources are plagued by increased
demand and diminishing supply. In 2000, the border
population was approximately 11.8 million (7), primarily
living in 14 sets of twin cities stretched out along the
border. Based on annual growth rates of between 3% and
5%, that population is expected to reach 19.4 million by
2020 (8).
Current water management on the U.S.–Mexico
border, therefore, is defined by three realities: first,
seasonal and annual variability of water supply; second,
overallocation of that supply; and third, increased
competition for the resource due to burgeoning growth
and changing priorities. Demand in the early and mid-
1900s was sufficiently low that, except in times of
severe drought, supply was adequate to meet demand.
Growth and changing demand patterns have altered the
balance and strained the institutional mechanisms that
regulate and manage shared waters. Issues of how to
deal with persistent drought, the allocation and joint
management of groundwater basins, and environmental
concerns surrounding degraded and endangered habitat
and species have stretched the limits of the treaties
and their institutions. The current debate centers around
the question of whether the treaties in force have the
flexibility to deal with emerging issues, whether they
should be significantly altered, or if new treaties should
be enacted (9–12).
BIBLIOGRAPHY
1. Leon Metz provides a detailed description of boundary
disputes and surveys in Metz, L. C. (1989). Border: The U.S.-
Mexico Line. Mangan Books, El Paso, TX.
2. For a complete list of treaties, see United States Department
of State, O. o. t. L. A. (2003). Treaties in Force: A List of
Treaties and Other International Agreements of the United
States in Force on January 1, 2003. Washington, DC.
3. A description of the Minutes approved since 1946 can be
accessed at www.ibwc.state.gov.
4. corpauUnited States Department of State. (1944). Treaty
Relating to the Utilization of Waters of the Colorado and
Tijuana Rivers and of the Rio Grande. 59 Stat. 1219; TS 994;
9 Bevans 116; 3 UNTS 313.
5. The limited ability of the 1944 Treaty to deal with drought
is expertly outlined by Stephen Mumme and Ismael Aguilar
Barajas in ‘‘Managing border water to the year 2020’’ in
The U.S.-Mexican Border Environment: Binational Water
Management Planning.
6. Dettinger, M.D. (1995). Coping with severe and sustained
drought in the Southwest. Water Resour. Bull. October.
7. For an explanation of population and economic growth
trends, see Peach, J. and Williams, J. (2000). Population and
economic dynamics on the U.S.-Mexican border: Past, present
and future. The U.S.-Mexican Border Environment: A Road
Map to a Sustainable 2020. P. Ganster, San Diego State
University Press, San Diego.
8. United States Environmental Protection Agency and Sec-
retarı́a del Medio Ambiente y Recursos Naturales. (2003).
Border 2012: U.S.-Mexico Environmental Program.
9. Lopez, M. (1997). Border tensions and the need for water:
An application of equitable principles to determine water
allocation from the Rio Grande to the United States and
Mexico. Georgetown Int. Environ. Law Rev. 9(2): 489.
10. Mumme, S. (2000). Minute 242 and beyond: Challenges and
opportunities for managing transboundary groundwater on
the Mexico–U.S. border. Nat. Resour. J. 40(2): 341–378.
 NEGOTIATING BETWEEN AUTHORITY AND POLLUTERS: AN APPROACH TO MANAGING WATER QUALITY
11. Brown, C., Castro, J.L. et al. (2003). Comparative analysis of
transborder water management strategies: Case studies on
the United States–Mexico border. The U.S.–Mexican Border
Environment: Binational Water Management Planning.
S. Michel (Ed.). San Diego State University, San Diego.
12. Mumme, S. and Aguilar Bajaras, I. (2003). Managing border
water to the year 2020: The challenge of sustainable devel-
opment. The U.S.-Mexican Border Environment: Binational
Water Management Planning. S. Michel (Ed.). San Diego
State University, San Diego, pp. 51–94.
NEGOTIATING BETWEEN AUTHORITY AND
POLLUTERS: AN APPROACH TO MANAGING
WATER QUALITY
PETR ŠAUER
ANTONÍN DVOŘÁK
University of Economics
Prague, Czech Republic
INTRODUCTION
Water pollution reduction is one of the most complicated
challenges of environmental policy. Water quality engi-
neers are able to offer many technical solutions. Some
are based on ‘‘end-of-pipe’’ technologies; some represent
‘‘cleaner production’’ solutions. Solutions exist that are
already economically efficient for the polluters. Many
cleaner production projects are of this type. However,
many projects exist that bring net control costs for the
polluters, so the polluters do not have an economic inter-
est in them. As these projects can still be efficient from
the social point of view (if negative externalities would be
internalized), it is important to change the institutional
framework of environmental policy. The best institutions
are those that not only satisfy ecological efficiency but
also support economically efficient solutions, or at least
cost-effective solutions, to the given problem. Our contri-
bution is to present a relatively new approach that could
lead to cost-effective solutions of water pollution reduction
problems. It is based on voluntary negotiations between
an authority and polluters where economic tools of envi-
ronmental policy (environmental fees and subsidies) are
used at the same time. The principle of the approach
is explained in the and an illustration of an economic
laboratory experiment follows.
PRINCIPLE OF THE APPROACH DESCRIBED
The suggested approach is based on (mostly multiple
rounds) negotiations between an authority of environmen-
tal policy and economic subjects—polluters. The binding
agreements are the results of the negotiations. The agree-
ments contain: (final) commitments of the polluters to
reduce pollution, commitments of the authority to con-
tribute negotiated financial resources to pollution reduc-
tion projects, and a set of consequences in the case of
noncompliance with the agreement conditions. If the water
pollution charges are introduced, then there must be a
commitment of the polluters to pay it, unless the charge
has not been already introduced by a law, i.e., the charge
647
already exists. NGO’s and various independent experts
(like public health experts, ecologists, environmental engi-
neers) can also take part in this procedure.
The positions and performance of the parties taking
part in the negotiations are as follows [for the formalized
procedure see (1)]:
The polluters have technical solutions (projects) that
can reduce their pollution. They know the true information
about their net costs of environmental protection but keep
it confidential, which creates a so-called information asym-
metry between the polluters and the authority. The fact
that the polluters can keep the private information confi-
dential and still achieve a cost-effective outcome seems to
be one of the important privileges of the approach. During
the negotiation process, they apply their own strategies
to their benefits maximization when requesting (finan-
cial) contributions from the authority and offering water
pollution reduction in the single rounds of the negotiations.
The authority has some available information about
contributions of individual polluters to the pollution in the
region, but it is unfamiliar with the true net costs of envi-
ronmental protection of polluters and about their criteria
of economic efficiency. The authority uses traditional eco-
nomic tools in the process of the negotiation. The rate of
payments for pollution is set. The rate of this payment can
also be negotiable in more advanced models of the concept.
The authority collects revenues from these payments in a
fund and negotiates financial contributions from the fund
with the polluters. During the process of negotiations, it
maximizes various environmental effects per one unit of
the financial contribution, which leads to the cost-effective
solutions. Various methods and approaches for a quantifi-
cation of indicators of these environmental effects can be
used, such as risk assessment, multicriteria analyses, etc.
Three different sets of environmental indicators could be
used in the process: first, charging for the pollution; sec-
ond, setting priorities for the financial support from the
fund, and third, the final control of the concluded agree-
ments. The authority can use various strategies from a
spectrum defined by marginal strategies as follows: the
first strategy leads to a uniform contribution from the
fund per one unit of the positive environmental effect;
the second strategy tries to reflect different net costs of
environmental protection of the individual polluters.
LABORATORY ECONOMIC EXPERIMENT ILLUSTRATION
Let us illustrate the approach to a laboratory economic
experiment. An ideal case of (politically) required water
pollution reduction in a river basin was based on both
environmental and economic data taken from various
projects realized in practice in the Czech Republic. We
considered pollution based on chemical oxygen demand
(3,700 t/year), dissolved substances (790 t/year), insolved
substances (1,320 t/year), phosphorous (18 t/year), and
nitrogen (140 t/year). To put it more simply, the pollution
was recalculated by using coefficients of harmfulness
of the single pollutant. The resulted pollution was
1,454,000 units/year.
15 major polluters exist in the region. Their contribu-
tion to the pollution was transferred to the recalculated
648 WATER RESOURCE ORGANIZATIONS
units as follows: textile company (A; 30,760), stone man-
ufacturing (B; 5,760), heating station (C; 7,750), pigments
manufacturing (D; 4,500), heating station (E; 14), photo-
developing (F; 50), metal surface remanufacturing (G;
10,800), textile (H; 102,560), food production (I; 365,200),
food production (J; 157,890), waterworks (K; 176,750),
municipality I (L; 54,605), municipality II (M; 99,500),
municipality III (N; 105,250), and municipality IV (O;
43,790). These polluters contribute, in total, 1,165,108
units, which is approximately 80% of total water pollution
in the basin.
The environmental goal for the region was to reduce
pollution from all sources at least by about one-third and to
reduce pollution from the major sources by about one-half.
The laboratory experiment was conducted by Czech
students of Environmental Economics and Policy Special-
ization at the University of Economics in Prague. The
students played roles of managers of polluting entities.
The teacher played the role of the authority. Charges that
are paid according to Czech law (2) on pollution of surface
water were used as a rate of payment for single pollutants
to create revenues in the fund.
The negotiating in this experiment took three rounds.
Six hypothetical agreements between the authority and
the polluters were concluded at the end of the last round: I
(pollution reduction 280,700 units), B (5,760), J (151,975),
N (89,448), K (88,750), G (7,200). The agreed pollution
reduction was 623,833 units in total, which represents
about 54% of total pollution from major sources and about
43% of total pollution in the region. When repeating
the experiment with teachers of economics, the agree-
ments were concluded with a similar set of polluters C,
G, I, J, B, and K. The pollution reduction was, in this
case, 535,825 units [for the other experiment see (1)]. The
theoretical (computed) pollution reduction satisfying the
cost-effectiveness rule was 536,523 units, i.e., very close to
the results of both experiments. Also, the subsidies agreed
at the end of the experiments were very close to the theo-
retical (computed) ones: Computed subsidies were 55,799
monetary units. Students agreed with 52,650 and teach-
ers concluded the agreements with the total subsidies at
54,780 monetary units.
Other experiments testing the described approach
were conducted using ideal data. Also, in these cases,
the experimental outcomes were very close to the
computed ones.
In the next step, we used the same data for experiment-
ing with the tradable pollution permit system. We were
interested what the result would be if the same (water)
pollution reduction target were achieved via trading the
permits. In all laboratory experiments, the set of polluters
who concluded the agreements with the authority and the
set of polluters who sold the permits were about the same.
Moreover, the price per one unit of permit was very close
to the subsidy per one unit of reduced pollution.
CONCLUSIONS
It would be possible to discuss several practical applica-
tions of the approach. It could be used as a model for negoti-
ations between a state environmental protection authority
(regulator) and multiple polluters, as described above.
An environmental protection fund could be established
and privately owned by the polluters that voluntarily want
to solve a pollution reduction problem in a region and want
to use the negotiation approach to avoid negative state
authority action. The concept could be applied within a
single corporation having multiple sources of pollution for
solving the ‘‘principal-agents’’ problem where manager’s
and owner’s utility functions are different.
A special application might be to organize a voluntary,
experimental workshop of selected polluters and/or
experts. Some information that might be useful for
environmental policy decision-making, like a rough
estimation of the environmental pollution charges, could
be generated at the workshop (to receive information that
is important).
The approach can also help with an efficient initial
distribution of tradable water pollution rights. Moreover,
it could contribute to resolving complicated situations
(characterized by many pollutants, synergic effects, etc.)
before the rights are allocated for limited number of
the pollutants.
BIBLIOGRAPHY
1. Sauer, P., Dvorak, A., Lisa, A., and Fiala, P. (2003). A pro-
cedure for negotiating pollution reduction under information
asymmetry. Environ Resource Econom. 24: 103–119.
2. Czech National Council Act No. 58/1998 Coll. on the Charges
for Pollution of Surface Water.
READING LIST
Brink, P. (Ed.). (2002). Voluntary environmental agreements.
Process, Practice and Future Use. Greenleaf Publishing,
Sheffield.
Dinar, A. (Ed.). (2000). The Political Economy of Water Pricing
Reforms. Oxford University Press, New York.
May, C. (1998). Environmental agreements. The Role and Effect
of Environmental Agreements in Environmental Policies.
Fiala, P. (1997). Models of cooperative decision-making, In:
Multiple Criteria Decision-Making. G. Fandel and T. Gal (Eds.).
Springer, Berlin, pp. 128–136.
Glasbergen, P. (Ed.). (1998). Co-operative Environmental Gover-
nance: Public-Private Agreements as a Policy Strategy. Kluwer
Academic Publishers, Dordrecht, the Netherlands.
On Environmental Agreements. (1996). Commission of the Euro-
pean Communities (COM 96–561 final). Brussels, Belgium.
OECD. (1999). Voluntary Approaches for Environmental Policy:
An Assessment. OECD, Paris.
WATER RESOURCE ORGANIZATIONS
PETER E. BLACK
SUNY ESF
Syracuse, New York
Water management organizations evolved at local,
regional, state, and federal levels. They were created, in
large part, during the twentieth century, exhibit different
degrees of formality and authority, and exist for different
purposes, serving different groups consisting of individual

qualified members and/or of the public at large. The orga-
nizations fill specific missions, roles, and meet demands of
members and official segments of society. Knowing their
missions and responsibilities makes it easier to seek infor-
mation or how to influence their responsibilities.
INTRODUCTION
Organizations may be classified in a variety of ways. The
water and related land resources agencies lend themselves
to classification by mission (or responsibility), level of
government, and legal status. Other water organizations
may be national in scope but voluntary in membership,
responsible for licensed professional activity, or open
to all who subscribe to the group’s philosophy. Any
nongovernmental organization may be chartered under
the laws of a state and may be incorporated for protection
from liability actions. Some organizations may be tax-
exempt, depending on their political nature and/or activity.
Organizations may be temporary if their missions are
limited; others may experience a shift in mission as their
goals are achieved, or the membership finds them no
longer relevant.
GOVERNMENTAL ORGANIZATIONS
Federal Agencies
Federal agencies derive their authority from the U.S.
Constitution. State agencies, of course, derive theirs from
their constitutions, which were approved by the U.S.
Congress at the time of statehood, or were subsequently
created by state legislatures. All the organizations’
chartering legislation is subject to judicial review to ensure
constitutionality. For example, the 1911 Weeks Forest
Purchase Act (36 Stat 961) asserts in its opening statement
of purpose of ‘‘the purchase of forest lands necessary to
protection of the flow of navigable streams,’’ the federal
government may buy abandoned forest lands for inclusion
in the National Forest system. Those fourteen words (in
quotes) are sufficient to establish the constitutionality
of the Act because the Constitution confers the right to
regulate navigation on the federal government [Article
I, Section 8 (3)]. The principal federal agencies charged
with water and related land management are arranged by
primary function(s) in Tables 1a to 1e (abstracted from
Table 3.1 in Reference 1). Many agencies have other
functions as well.
State Agencies
The states usually have a series of departments involved
with forests, water, lands, fish and wildlife, and parks
and recreation. The specific names and combinations
of responsibilities are quite variable but tend to follow
some typical patterns and in several different ways
administer those permits and programs that federal
agencies may have delegated to lower levels either
because the states refused to be regulated by the federal
government, they wished to have greater control over the
regulations, or the federal government had neither the
WATER RESOURCE ORGANIZATIONS 649
time nor funding to execute the mandated responsibility
(‘‘unfunded mandate’’).
Typically, the states create state-wide agencies such
as departments of natural resources or environmental
conservation, fish and wildlife, parks and recreation,
agriculture and markets, and so forth. These deal with
intrastate policies and management, regulation, granting
of permits, and occasionally research and inventory. For
point source pollution control permits under the control of
the (federal) Environmental Protection Agency, the latter
may have delegated responsibility for issuing National
Pollution Discharge Elimination System (NPDES) to the
state agency, in which case they are called SPDES
permits. Continuing coordination between the state
issuing authority and the EPA is part of these cooperative
efforts. Some of the agencies may also be involved as
partners with similar agencies in other states.
States may create interstate organizations to work
with neighboring states by authority of the United States
Constitution [Commerce Clause, Article I, Section 10 (3)].
These are interstate compacts that may exist for any
of several reasons. Most interstate compacts administer
interstate rivers and harbors. The managing organization
is known as a commission (as opposed to a committee,
which is usually informal. The Commissioner of the
appropriate state department may serve—by appointment
of the governor—as the representative of the state to an
interstate commission.
Local Agencies
States may extend the constitutional right to local
government to create agencies such as districts. These
are extensions of state government that have the power
to set boundaries, hold referenda, tax those holding
real property within the district boundaries, enter into
contracts, and incur indebtedness. There is a wide variety
of districts; many exist for water management, including
soil and water conservation districts, flood control districts,
conservancy districts, drainage districts, and so on (in
addition to the typical neighborhood highway districts,
lighting, fire fighting, and school districts).
Typically, local organizations are formal or informal.
The former include the districts (described above), and the
latter are associations. Associations are not legal exten-
sions of state government. Without formal boundaries,
they may have members who agree to pay dues and may
live anywhere. Usually, some common long- or short-term
interest is the glue that holds the association together.
Currently, there are thousands of watershed initiatives,
associations that have a wide variety of collective names.
They are watershed, river basin, or lake associations,
councils, committees, land trusts, and so forth. They may,
of course, be incorporated. Districts are often identified
by other descriptive names, such as Resource Conserva-
tion Districts, Soil Conservation Districts, Conservation
Districts, Natural Resource Districts, and Land Conser-
vation Districts (as is pointed out on the NACD website
http://www.nacdnet.org/). In some of the states that have
strong county governments, the districts are organized
on the basis of and coincident with the boundaries of the
county; in others, the district is based on natural drainage.
 Table 1a. Federal Land and Water Management Agencies
Agency Date Department Mission, Responsibility

Bureau of Indian Affairs
Forest Service
National Park Service
Fish and Wildlife Service
Bureau of Land Management
1824 War, Interior Manage forest, range and water resources; education, advocacy
1905 Interior, Agriculture National forests, research, state and private forestry, and
international forestry
1916 Interior Preservation for science and recreation
1940 Interior Wildlife refuge administration
1946 Interior Renewable and mineral resources on public lands

Table 1b. Federal Construction and Operating Agencies

Agency Date Department Mission, Responsibility

Corps of Engineers
Bureau of Reclamation
Natural Resources
Conservation Service (nee
Soil Conservation Service)
Tennessee Valley Authority
1774 Continental Congress, Survey, rivers and harbors, navigation, flood control, water supply,
War, Defense water supply and recreation, dam safety, wetland permits, and
aquatic ecosystem restoration
1902 Interior Irrigation and dams therefore
1933 Agriculture (Interior for a Soil and water conservation, upstream flood control, wetlands,
few years) education and information; administration of principal
agricultural conservation programs; disaster response
1933 Independent Hydropower development, flood control, economic improvement

Table 1c. Federal Regulation and Enforcement Agencies

Agency Date Department Mission, Responsibility

Interstate Commerce 1887 Independent Carrier rules and regulation; sets interstate freight rates and routes
Commission
Federal Power Commission 1920 Independent Licenses hydropower sites on navigable streams, public lands
Flood Insurance Administration 1968 Housing and Urban National Flood Insurance Program
Development
Environmental Protection 1970 Independent Pollution control permits, abatement, research/grant programs
Agency

Table 1d. Federal Research and Inventory Agencies

Agency Date Department Mission, Responsibility

Geological Survey
National Weather Service (nee
Weather Bureau)
Agricultural Research Service
Office of Water Research and
Technology
National Oceanic and
Atmospheric Administration
1879 Interior Mapping, hydrologic data collection, publication, and research;
benchmark watershed program
1890 Signal Corps, Weather data collection, research, and publication; flood and fire
Agriculture, weather forecasting
Commerce, NOAA
1953 Agriculture Soil–water–vegetation research
1964 Interior, now abolished Promotion, coordination, and funding for water resources research
1970 Commerce Explores, maps, and charts oceans, atmosphere, and space

Table 1e. Federal Coordination and Study Agencies

Agency Date Department Mission, Responsibility

Senate Select Committee 1959–1961 Congress Federal investigation of all water resource issues
on Water Resources
Water Resources Council 1965–1981 Independent (now Coordination of federal activities, flood control regulations,
nonfunded) principles and standards for evaluation of water and related land
resources projects and programs
National Water 1968–1973 Independent Nonfederal study of all water resource programs issues
Commission
Council on 1970 President Policy, research, advice to President and reports to Congress and
Environmental Quality the Public
National Study 1972–1977 Independent Charged to report on necessary adjustments to Clean Water Act
Commission halfway to 1983 and 1985 goals

650
 A BRIEF HISTORY OF THE WATER POLLUTION CONTROL ACT IN THE U.S.
PROFESSIONAL ORGANIZATIONS
There are numerous professional societies (sometimes
confusingly referred to as associations) that serve the par-
ticular profession, such as architects, engineers, fishery
biologists, foresters, geologists, geophysicists, hydrolo-
gists, landscape architects, limnologists, oceanographers,
public administrators, range managers, soil scientists,
surveyors, water works managers, well drillers, wetland
managers, wildlife managers, and so forth. Many of these
organizations serve, wholly or in part, important pro-
fessions in water resource activities. Many have both
technical and public-oriented publications that might be
of interest to the lay public. Annual national and regional
or state meetings are also often open to the public in
whole or in part. Usually, putting the organization’s
initials (or full name) into the website URL line will
provide the home webpage. Many water resources organi-
zations may be found listed under links at the American
Water Resources Association (http://www.awra.org), the
principal interdisciplinary professional water resources
organization in the United States, at the Environmental
Protection Agency (http://www.epa.gov/), or at the web-
site of the Conservation Technical Information Center
(http://www.ctic.purdue.edu/CTIC/CTIC.html).
NONGOVERNMENTAL ORGANIZATIONS
Nongovernmental organizations are most often referred to
collectively as ‘‘NGOs.’’ The number continues to grow.
Many of these may also be found at the websites of
organizations cited above, by online search, or in the
publications of the organizations.
During the past two decades (approximately), water
resources management decisions have been effected by
partnerships made up of mandated national, state,
and local agencies in concert with business, interested
individuals, and NGOs. Successful partnerships operate at
all levels, with large or small numbers of participants, with
and without government sanction, and over time with a
shifting membership reflecting past accomplishments and
initial goal achievement. Partnerships represent the finest
in problem solving challenges and are truly democracy
in action.
Partnerships require that all stakeholders1 have an
opportunity to take part in the process; that the
participants respond to questions such as ‘‘What are our
common goals?’’, ‘‘What can we do together better than
separately?’’, ‘‘On what do we disagree?’’, and ‘‘Can we
agree on an initial objective?’’; that no one participant
exercises fiscal, organizational, political, or social control
over the process or the outcome; that participants treat
one another with cordiality and respect; and that there be
some identifiable constraint on the challenge, usually for
water resources challenges, geographical, but also possibly
economic, legal, or disaster or other crisis.
1
This interesting term is currently used to identify those with
a vested interest. However, that is the precise opposite of the
original use of the term to identify the person in a poker game
who held the bet funds—the stake—while the game was played
out, in other words, it was the person who had no vested interest!)
651
SUMMARY
Historical, legal, and cultural events during the last 200
years combine with the individual personalities of leaders
and public citizens to leave a massive array of legislation,
government agencies, and nongovernmental organizations
all charged with or assuming responsibilities for some part
of the water resources of the United States. Knowing the
authority, extent of influence, nature, and relationships
among the organizations is essential for sound water
resources management. But, it does not guarantee it: only
when people take on the responsibility of participating
in the important water resources decision-making process
will the vital water resources be effectively managed for
a sustainable future. Partnerships are important players
in the continuing policy and management decisions over
water and related land resources.
BIBLIOGRAPHY
1. Black, P.E. and Fisher, B.L. (2000). Conservation of Water and
Related Land Resources, 3rd Edn. CRC Press/Lewis, Boca
Raton, FL.
READING LIST
Holmes, B.H. (1979). History of Federal Water Resources Pro-
grams and Policies, 1961–70. USDA, Miscellaneous Publication
No. 1379, Superintendent of Documents, USGPO, Washington,
DC.
Holmes, B.H. (1972). History of Federal Water Resources Pro-
grams. Miscellaneous Publication 12233, Department of Agri-
culture, Washington, DC.
Office of the Federal Register. (1998). Government Organization
Manual, 1998–1999. National Archives and Records Adminis-
tration, Washington, DC.
A BRIEF HISTORY OF THE WATER POLLUTION
CONTROL ACT IN THE U.S.
DAVID L. RUSSELL
Global Environmental
Operations, Inc.
Lilburn, Georgia
The Rivers and Harbors Act of 1899 was the earliest piece
of federal water pollution control legislation in the United
States. It regulated the dumping of garbage into rivers
and harbors from ships. The act was only moderately
successful in its application, but it became important in
the 1970s when the EPA used it to regulate discharges
into navigable waters.
ORSANCO
The earliest significant start for water pollution control
legislation in the United States began with the formation
of the Ohio River Sanitary Commission (ORSANCO) in the
1940s. It was formed as a result of efforts by individuals
652 A BRIEF HISTORY OF THE WATER POLLUTION CONTROL ACT IN THE U.S.
from the U.S. Public Health Service (USPHS) and many of
the state Departments of Health. The ORSANCO compact
culminated more than 10 years of work to promote pub-
lic health and reduce the incidence of waterborne disease
in communities along the Ohio River. ORSANCO started
as an initial effort among four states, and by 1940, the
compact had six states. In 1948, the seventh and eighth
states signed the compact on the same day that President
Harry Truman signed the first comprehensive water pollu-
tion control legislation that directed the U.S. Public Health
Service to control water pollution to promote public health.
The Public Health Service already had authority, but
was reluctant to use it for water pollution control unless
there was a specific prominent incident. The real power to
control pollution still lay with the states.
By contrast, ORSANCO was effective because the
control came from within the states as a cooperative
agreement among the Departments of Health. ORSANCO
was instrumental in issuing the first set of coordinated
standards—the first water treatment design code man-
ual—in 1954. ORSANCO was also effective in coordinat-
ing the development of antipollution lawsuits and still is
an effective voice in the Ohio River region when it speaks
for the state governments. ORSANCO has legal authority
to compel individual polluters in any of the compact states
to reduce their discharge of pollutants, or even to cease
the discharge completely and can, if it chooses, override
individual state governments.
The ORSANCO compact is still in force and has
remained unchanged for 50 years. The fundamental tenet
of the compact is that the discharge from one state shall
not be injurious to the public health and well-being of the
residents of another state.
It is important to point out that developments in
water chemistry, analytical technology, and fundamental
research, along with political developments, accompanied
the growth and expansion of ORSANCO. Many of these
developments were independent, but it was the driving
interest in water pollution control and industrial wastes
that created the climate for research and development
to bloom. Many of the earliest names in the history of
water pollution control were involved with ORSANCO as
well. Harold Streeter, who is one of the formulators of
the Streeter–Phelps equations (which underlie much of
river modeling) was an early Commissioner of ORSANCO.
State Commissioners on the ORSANCO Board of Gov-
ernors (from their respective State Health Departments)
include Clarence Klassen (Illinois), Blutcher Poole (Indi-
ana), and Fred Waring (Ohio). One of many early workers
in the State of Indiania was Dr. Don Bloodgood at Pur-
due University, who created the Purdue Industrial Waste
Conference in 1946. That conference was made possible
through the encouragement of some of the ORSANCO
Commissioners and was instrumental as a showcase in
promoting nationally prominent water pollution control
research until its incorporation into the Water Environ-
ment Federation Industrial Wastes Program in 2000.
WATER POLLUTION CONTROL ACT OF 1948
In 1948, the Water Pollution Control Act (Ch. 758; P.L.
845) authorized the Public Health Service to prepare
comprehensive programs for eliminating or reducing
the pollution of interstate waters and tributaries and
improving the sanitary condition of surface and under-
ground waters. Under the plan, water conservation
and improvement was to be emphasized. The original
statute also authorized the Federal Works Adminis-
trator under the U.S. Public Health Service to assist
states, municipalities, and interstate agencies in con-
structing treatment plants to prevent discharges of inad-
equately treated sewage and other wastes into interstate
waters or tributaries. More information is available at
http://laws.fws.gov/lawsdigest/fwatrpo.html.
Controlling pollution and industrial waste gradually
became more important, and the original act was amended
to authorize additional water quality programs, standards,
and procedures to govern allowable discharges as well
as funding for construction grants or general program
funding. The authority of the original act was extended
several times, through appropriations up to 1956 by Ch.
927; P.L. 579.
Progress to the Mid-1960s
The Federal Water Pollution Control Act Amendments
of 1961 (P.L. 87-88) stipulated that, during the planning
for any reservoir, federal agencies consider storage to
regulate stream flow for water quality control, but the act
was placed under section 33 U.S.C. 1252 (transportation)
of the U.S. Code. This later provided impetus for the U.S.
Army Corps of Engineers and the U.S. Coast Guard to have
authority for ‘‘transportation related’’ oil spills and what
later became National Pollution Control Discharge Permit
issuance. Under the 1961 amendments, the Department of
Health, Education, and Welfare was directed to undertake
research and determine the effect of pollutants and
treatment methods and assess water quality in the Great
Lakes. The Secretary of HEW was authorized to take
‘‘appropriate measures to ward off pollution of interstate
navigable waterways if requested by a state (33 U.S.C.
1254(f)). Few requests were issued under the legislation.
The Department of Heath, Education, and Welfare
was also ordered to report to Congress by 1964 on the
effects of pollution on U.S. estuaries and the economic
impacts of pollution control. HEW was also told to develop
recommendations for further actions that would lead to
a comprehensive national policy and define the roles of
federal, state, and local governments. The interests of
Mexico and Canada were initially considered but only as
they related to damage from pollution of boundary waters
(the Great Lakes and St. Lawrence Seaway, and the Rio
Grande River). Congress prohibited the discharge of oil
into U.S. waterways under 33USC 466 (transportation
legislation).
Congress decided to provide some form of funding
to states and cities to construct sewage treatment
plants. This Construction Grants Program was initially
a relatively modest effort through most of the 1960s, and
it was capped until late in the decade at a maximum grant
of 33% of the cost of interceptor sewers and treatment
works.
 A BRIEF HISTORY OF THE WATER POLLUTION CONTROL ACT IN THE U.S.
PL-660
Public Law 660 was the beginning of a comprehensive
pollution control effort. Prior to PL-660, the Public
Health Service (Commission Corps) officers were largely
responsible for water pollution control. The law that was
passed in the early 1960s made several important changes
in the funding of water pollution control programs. A
new organization, called the Federal Water Pollution
Control Agency, was created under the administration
of the Department of Interior. The FWPCA also had
responsibility for pollution control in Alaska (P.L. 86-70)
and an expanded role in construction grants (P.L. 86-624).
The Silent Spring, the Age of Aquarius, and the Vietnam War
The publication of Rachel Carson’s The Silent Spring in
1967 and the dawning of the ‘‘Age of Aquarius,’’—the
coming of age of the children born after World War II—led
to a major departure from the once quiet role of the federal
government in pollution control. In the United States,
the Vietnam War was a time of domestic turbulence and
significant social and political protest. The statements
of young radicals (‘‘Don’t trust anyone over the age of
30’’) and a growing dissatisfaction with the progress in
solving the war led to social protest and dissatisfaction
with other areas of government as well. ‘‘Make Love not
War’’ and the countercultural exploration of new religions
and ideas, especially those from India, quickly led to the
incorporation of the concept of ‘‘Mother Earth’’ and a
‘‘Gaia’’ movement. Among the tenets of this movement
were the concepts that the earth was a living sentient
being, that all industry was bad and full of polluters, and
that all pollution was bad and should be stopped at any
cost. During this era, the first ecoterrorists became active
in driving spikes in trees to be logged so that they would
ruin the timber cutting and debarking machines. Other
actions and rhetoric were also significant in defining and
shaping the environmental movement.
The Silent Spring presented a graphic description
and made a persuasive case for the ecological damage
from the indiscriminate use of pesticides, principally
DDT. When the book reached bestseller status and was
condensed in Reader’s Digest, it struck a resonant chord
among disaffected youth. When combined with the societal
revolution, it quickly led to the inauguration of the first
‘‘Earth Day’’ in 1970. Later, researchers accused Carlson
of sloppy and inaccurate research and presentation of a
poor case for action, but her literary talents and public
opinion silenced the critics.
The Clean Water Restoration Act of 1966, P.L. 89-753,
authorized the Departments of Interior and Agriculture
and the Water Resources Council to study the effects of
pollution, including sedimentation, on fish and wildlife,
sport and commercial fishing, recreation, water supply
and power, and other specified uses in the estuaries and
estuarine zones of the United States.
By 1969, the United Nations entered the political fray
about the environment, when the Secretary General (U
Thant) predicted Armageddon from environmental causes.
He was asking whether mankind could survive another 10
years without immediate and decisive actions to control
653
pollution. Predictably, he condemned the United States
as the principal culprit in creating this forthcoming
environmental disaster (which it may have been) and
demanded that the United States take unilateral action
to control pollution. He conveniently ignored the pollution
arising from the rest of the world and the benefits from
their industrial activity.
In the United States, Congress created the National
Environmental Policy Act in 1969 and submitted it to
President Nixon for signature. The NEPA was hailed as a
new direction for the federal government because, for the
first time, certain specific federal actions were to become
subject to environmental review and the issuance of an
‘‘environmental impact statement.’’ According to President
Nixon, this heralded, ‘‘a new decade of environmental
awareness.’’
On December 2, President Nixon signed Reorganiza-
tion Plan Number 3, which created a new cabinet-level
federal agency, the Environmental Protection Agency. The
plan disbanded the Federal Water Quality Administration
and stripped the Department of Interior of environmen-
tal enforcement responsibilities and programs. It also
demoted the role of the Public Health Service and the
Corps of Engineers in managing and controlling air pollu-
tion and water pollution, respectively.
It should be noted that at that time, many of
the industries located on major waterways, such as
the Ohio River, were required to obtain operating
discharge permits issued by the Corps of Engineers.
Municipalities were, depending on size, operating with
state permission and permits. The federal program was
much better administered than state programs. Funding
for construction of wastewater treatment facilities by
municipalities was coordinated through the states, and
federal monies for construction grants to municipalities
were rapidly increasing to 66% of the cost of those facilities
that the states had prioritized.
Other actions in 1970 under PL 91-224 included
1. the development of a National Contingency Plan for
preventing discharge of oil to the seas;
2. the development of regulations for determining
harmful quantities of oil discharged to U.S. waters;
3. state certification that such discharge will not violate
applicable water quality standards;
4. development of performance standards for marine
sanitation devices;
5. demonstration projects to control acid or other mine
water pollution;
6. control of water pollution within the watersheds of
the Great Lakes; and
7. required federal facilities to operate in compliance
with applicable water quality standards.
PL 92-500
The passage of PL 92-500 is often considered a major
landmark in defining national policy for environmental
protection. The reason often cited is the stated goals of
the law: to make the waters of the United States fishable
and swimmable by 1985. The law also had several other
654 A BRIEF HISTORY OF THE WATER POLLUTION CONTROL ACT IN THE U.S.
important provisions in addition to dramatic increases in
funding for sewage treatment works.
The financial incentive for municipalities was increased
to between 85% and 95% of the applicable construction
costs and was supported by a very large pool of money.
The consequence of this funding was that the qualified
and unqualified began designing and building wastewater
treatment works at an enormous rate—so fast that
the personnel required for planning, project review, and
construction oversight were overwhelmed by applications.
Moreover, the incentive for oversight was reduced because
the municipalities had only 5% to 15% of the actual cost
at risk and the administration of the federal Construction
Grants Program was primarily financial, not technical. As
a result, a large number of new facilities were built, many
of them far in excess of the needs of the communities.
By 1982, the EPA had issued a manual citing the most
common mistakes in designing facilities. This manual
detailed the most common failures in designing facilities,
and, by its very existence, was a ringing condemnation
of the many failures of oversight of the Construction
Grants Program. Many of the mistakes cited by the EPA
were elementary and illustrated a degree of incompetence
of many of the design professionals and failure of the
regulatory community to exercise adequate planning
and oversight. Planning and oversight takes qualified
manpower and time and cannot be rushed.
The Construction Grants Program was a well-
intentioned failure in a number of other aspects as
well. First, it added a significant level of complexity and
paperwork requirements to the construction program that
increased engineering, administrative, and total project
costs. The requirement for Davis–Bacon Act compliance,
which mandates that the highest prevailing wage rate
would be paid and that union labor would be used when-
ever and wherever possible, effectively eliminated any
potential savings from the use of nonunion labor and
discouraged many cost-efficient improvements.
The second item that caused the greatest percentage
of failures was directed at the engineering specifications.
The EPA required that the project engineer must provide
three specifications for each major piece of equipment in
a project and that those items would be competitively
bid without regard to the quality, only the price. The
result was often a direct and dramatic deterioration in
the quality of equipment purchased. The equipment was
often selected by the contractor who had the option to
appeal to the EPA on the basis of potential savings for
the project. Many projects became contractor’s auctions
where the final project bore only a slight resemblance
to the engineer’s original specifications. The result was
that equipment compatibility and reliability issues often
arose during construction but were often sidestepped or
overlooked because of the insistence on obtaining the
lowest costs.
One final impact of the Construction Grants Program
under PL 92-500 was the restructuring of the U.S. wastew-
ater treatment industry. The emphasis on equipment price
caused severe competition among wastewater treatment
equipment manufacturers and reduced profit margins. As
a result, companies cut back on research, and that had a
10 to 20-year impact on the wastewater treatment indus-
try. From about 1975 to 1995, new products were being
developed and introduced by non-U.S. sources.
Other requirements of PL-92-500 required the Federal
Power Commission not to license hydroelectric power
projects unless stream flow and water quality objectives
could be met; proposed a range of national objectives
for water quality designed to restore and maintain the
chemical, physical, and biological integrity of the national
waterways (33 USC 1252); and required reissuance of
permits for pollution control discharges.
This last item was the item that created the National
Pollution Discharge Elimination System (NPDES) per-
mit system. The legislation also established minimum
standards and requirements and provided funding for
states to assume control over their own water qual-
ity management programs, once they had demonstrated
their compliance with minimum federal standards set by
the EPA.
In addition, PL 92-500 significantly expanded pro-
visions related to pollutant discharges by requiring
point-source effluent limitations consistent with state
water quality standards, enabled the State issuance of
water quality standards, and provided initial methodology
for identifying and evaluating nonpoint-source pollution.
Authority was also provided for developing water quality
inventories and toxic and pretreatment effluent standards.
Other provisions clarified and established liability for
discharges of oil and hazardous substances, provided
for federal oversight and backup responsibility for oil
spill cleanup operations, and authorized the Corps of
Engineers to issue permits for discharging dredged or fill
material into navigable waters at specified disposal sites
(Section 404-33 U.S.C. 1344). However, the EPA could
block the use of a disposal site based on water quality
issues related to the discharge from the site and potential
deleterious effects on municipal water supplies, fisheries,
wildlife, or other water quality uses.
1977 Amendments
The Clean Water Act was further amended in 1977
(P.L. 95-217) to provide additional requirements for the
following: ‘‘Best Management Practices’’ Program as part
of the statewide planning program (33 U.S.C. 1288);
provision for the Fish and Wildlife Service to provide
technical assistance for developing ‘‘best management
practices;’’ authorization for the Department of the
Interior to complete the National Wetlands Inventory
by December 31, 1981; and additional regulations and
de minimis standards for the Corps of Engineers to
issue general permits for dredging and filling waters
and wetlands. These exemptions included normal farming,
silviculture, and ranching (33 U.S.C. 1344(f)), and general
activities below certain sizes.
1987 Amendments
The Water Quality Act of 1987 (P.L. 100-4) amended
the Clean Water Act to provide (1) continuation of the
Chesapeake Bay Program and an office dealing with
pollution of the bay; (2) establishment of a Great Lakes
 THE NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM
National Program Office within EPA and a Great Lakes
Research Office within NOAA; (3) a requirement that EPA,
the Fish and Wildlife Service, and NOAA conduct research
on the harmful effects of pollutants in the Great Lakes,
emphasizing the bioaccumulation of these pollutants in
aquatic species; (4) require states to develop strategies for
cleanup of toxics in waters where the application of ‘‘best
available technology’’ (BAT) discharge standards will not
meet state Water Quality Standards; (5) an increase in
the penalties for violations of Section 404 (Dredge and
Fill) permits; and (6) additional state reporting on lake
water quality and methods to reduce the adverse impact
of excess acidity.
A $15 million funding package has been provided
to demonstrate methods to reduce the acidity of lakes
(often found in coal and surface mining areas), and
a $400 million program has been authorized for states
to implement a nonpoint pollution source (agricultural
and other areas) control program with EPA oversight.
Estuaries of national significance are also to be nominated
under this program, and plans must be developed to
protect and restore those estuaries and to protect their
chemical and biological status.
THE NATIONAL POLLUTION DISCHARGE
ELIMINATION SYSTEM
ROLF R. VON OPPENFELD
The TESTLaw Practice Group
Phoenix, Arizona
INTRODUCTION
The Clean Water Act (CWA) authorizes the United States
Environmental Protection Agency (EPA) to regulate water
pollution discharges to federally regulated surface waters
via a permitting process. All facilities that discharge pollu-
tants from a point source into waters of the United States
must obtain a National Pollution Discharge Elimination
System (NPDES) permit from the EPA or an authorized
state [42 U.S.C. §§ 1311(a), 1342; 40 C.F.R. § 122.1(b)].
Permits typically allow the permittee to discharge speci-
fied pollutants from designated outfalls. See the NPDES
program homepage at http://www.epa.gov/npdes/. The
NPDES program generally imposes technology-based
standards and water-quality-based effluent limits on point
source discharges of pollutants to surface waters, although
less stringent requirements presently apply to stormwater
runoff discharges.
Currently, 46 states and territories are authorized
(have primacy) under Section §r402(b) of the CWA to
administer the NPDES program. The EPA regions are
the lead permitting authority in the other states and
territories. State NPDES programs must use federal
standards as a baseline; however, states may impose
stricter requirements [40 C.F.R. § 123.1(I)]. State-issued
permits are also subject to review by the EPA [33 U.S.C.
§ 1342(d)]. The EPA may make comments, objections, or
recommendations to the state. If the state does not change
655
the permit to address the EPA’s concerns, the EPA may
assume control of the permitting process for that facility.
[33 U.S.C. § 1342(d)(4)]. The EPA may also retract program
approval from states not administering the program in
accordance with federal law [33 U.S.C. § 1342(c)(2)]. When
the EPA region is the permitting authority in the state,
the state must certify that an authorized discharge will
comply with the state water quality standards [33 U.S.C.
§ 1341(a)].
TYPES OF PERMITS
A NPDES permit is a license to discharge a specified
amount of a pollutant or pollutants into a specified receiv-
ing water under certain conditions. The NPDES permits
establish effluent limitations [33 U.S.C. § 1362(11)]. How-
ever, NPDES permits also contain monitoring and report-
ing requirements, a duty to properly operate and maintain
systems, upset and bypass provisions, recordkeeping, and
inspection and entry requirements [40 C.F.R. § 122.41].
The source of much information concerning NPDES per-
mits is contained in EPA’s Permit Writers’ Manual located
online at http://cfpub1.epa.gov/npdes/writermanual.cfm.
There are two basic types of permits: the individual
and general permit. NPDES permits are issued for
fixed terms, not to exceed 5 years [33 U.S.C. §
1342(b)(1)(B); 40 C.F.R. § 122.46]. Individual permittees
generally must apply for renewal 180 days before the
permit expires. EPA has made electronic copies of
NPDES permits for major facilities available online at
http://www.epa.gov/NPDES/permitdocuments/.
General Permits
The permitting agency develops and issues a general
permit. A general permit typically covers multiple facilities
within a specified category, industry, or area. General
permits are cost-effective and efficient because the agency
can authorize discharges from a large number of facilities
with numerous common criteria under one blanket permit.
Facilities covered by a general permit ‘‘self-regulate,’’
although the permitting agency will periodically inspect
or investigate potential noncompliances. The procedures
for using general permits and the general conditions that
apply to all general permits can be found at 40 C.F.R.
§ 122.28. Most stormwater dischargers may apply for a
general permit by filing a Notice of Intent (NOI) pursuant
to a federal or state stormwater general permit. Many
states also issue general NPDES permits for certain
process wastewater discharges generally considered of
minimal impact.
Individual Permits
A discharging facility must be covered by an individual
permit if it does not qualify for coverage under a general
permit. The authorized permitting agency prepares an
individual permit for a specific facility. A permittee first
provides the required information on an individual permit
application.
656 THE NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM
Once the permit writer determines that the application
is complete, the technical review starts. Effluent limita-
tions are determined, and a preliminary permit containing
these limits is prepared. (Id). The agency publishes pub-
lic notice of the draft permit. Typically, the public notice
allows for 30 days of public comment. Based on this infor-
mation, the agency will issue or deny a permit (40 C.F.R.
§ 122.5).
DISCHARGE LIMITATIONS
Effluent limitations are established in a two-step
approach consisting of technology-based and quality-based
standards. First, dischargers are required to use treat-
ments that are technologically and economically feasible
for the particular industry. Additionally, dischargers may
be required to use more stringent treatments to achieve
certain water quality goals for the particular waterbody.
Limits can be expressed as mass limits, concentration lim-
its, visual observations, monitoring requirements, testing
requirements, parameter limits, flow, pH range, or tem-
perature limits. The limits can be imposed as maximum
limitations and monthly average limitations.
Technology-Based Effluent Limitations (TBEL)
The NPDES permit system sets technology-based levels
of allowable discharges, determined by a series of
minimum technology-based national effluent standards for
various industrial discharge categories. If no categorical
technology-based standards apply, the standards are
determined by the permit writer’s best professional
judgment (BPJ) of the appropriate technology-based
reduction. See 40 C.F.R. Part 400 et seq.
TBELs are national effluent guidelines that establish
limitations for all types of discharges within a specific
industry, such as direct and indirect dischargers, existing
and new sources, and specific discharges, including pro-
cess water, cooling water, and sanitary wastewater. EPA
has issued approximately 50 industrial category effluent
guidelines (40 C.F.R. §§ 405–471). Guidelines are avail-
able online at http://www.epa.gov/docs/epacfr40/chapt-
I.info/subch.N.htm.
The CWA created a two-step approach for dealing with
the reduction of water pollution through TBELs. The first
phase required industrial dischargers to meet pollution
control through the best practicable control technology
currently available (BPT) [33 U.S.C. § 1311(b)(1)(A)]. The
second level of pollution control required using the best
available technology economically achievable (BAT) [33
U.S.C. § 1311(b)(2)(A)]. BAT applies to nonconventional
pollutants, whereas best conventional pollutant control
technology (BCT), which is more lenient, applies to
conventional pollutants, as explained below. However,
BPT/BAT/BCT standards do not apply to new sources,
only to existing sources. New Source dischargers must
meet New Source Performance Standards (NSPS), based
on the best available demonstrated control technology
(BADCT) (33 U.S.C. § 1316). Also, industrial indirect
dischargers that discharge to a publicly owned treatment
works (POTWs) are not regulated by TBELs but are
instead subject to the Pretreatment Program under 33
U.S.C. § 1317(b).
BPT Standard. The BPT standard collectively examines
an industry category to determine the types of treatment
facilities used in that industry. The EPA looks at the
better run facilities and estimates the level of pollution
control achieved through the typical technology. The EPA
compares the cost of applying the technology to the entire
industry with the effluent reduction benefits. See 52
Fed. Reg. 42522 (Nov. 5, 1987). This analysis yields a
pollution control level demonstrating the average of the
best achieved pollution reduction.
BAT Standard. BAT controls represent the maximum
feasible pollutant reduction. EPA considers the technology
currently used in that industry and also pilot data and
technology used in other comparable industries. BAT
does not require the use of a cost–benefit analysis,
but the standard must be economically achievable. The
BAT standard was designed to apply to toxic and
nonconventional pollutants.
BCT Standard. BCT standards require industries to
meet a cost-reasonableness test for the discharge of
conventional pollutants, such as BOD, TSS, fecal coliform,
pH, and oil and grease [51 Fed. Reg. 24973 (July
9, 1986)]. The cost-reasonableness test compares the
reasonableness of the cost of the reduction in discharge
levels of conventional pollutants to the cost of achieving
that reduction. Conventional pollutants are subject to
BCT, which are no more stringent than the BPT standard,
rather than the more stringent BAT standard [33 U.S.C.
§ 1311(b)(2)(e)].
NSPS. New sources must comply with the stricter New
Source Performance Standards, thus making the definition
of a new source highly disputed. The EPA employs
the substantial independence test to determine whether
construction is leading to a new source or a modification
of an existing facility [40 C.F.R. § 122.29(b)(1)(iii)]. This
test looks at the degree to which the new unit functions
independently of the existing facility, the degree of
integration, and the extent to which the new unit is
engaged in the same general type of activity as the existing
source [49 Fed. Reg. 37998, 38043 (Sept. 26, 1984)].
NSPS are generally more stringent than those for
existing sources; ideally, new sources should be built with
state-of-the-art treatment technology. Requiring existing
sources to retrofit under NSPS would be unreasonable. The
major benefit to classification as a new source is that any
new source constructed to meet NSPS may not be subjected
to more stringent standards for 10 years after the date
construction is complete or for the period of depreciation
under the Internal Revenue Code, whichever is shorter (33
U.S.C. § 1316). However, the 10-year protection applies
only to TBELs, not to WQBELs. At the end of the 10-year
period, immediate compliance with the standards in effect
at that time is required [33 U.S.C. § 1316(d)].
Best Professional Judgment. When TBELs have not been
established for a particular industry sector or where there
 THE NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM
is a concern over a particular parameter (e.g., the permit
writer thinks a receiving water is too polluted), permit
writers will apply best professional judgment (BPJ) to
establish permit limitations [40 C.F.R. § 125.3(e)]. The
permit writer may consider data from the facility itself,
from similar industries having similar waste treatment,
or potentially applicable technology from an industry
outside of the immediate industrial group. See 40 C.F.R.
§§ 122.44(a), 125.3(c)(2).
Variances From TBELs. A qualified permittee may obtain
a variance or modification from its permit’s TBELs. One
type of variance is a fundamentally different factors (FDF)
variance [33 U.S.C. § 1311(n); 40 C.F.R. §§ 125.30–32]. The
discharger must demonstrate that the factors applicable
to its facility are fundamentally different from those
considered for developing the effluent guidelines for its
industrial category (40 C.F.R. Part 125). A variance is
not issued merely because the cost of compliance would
cause the facility to close. (Id). The applicant must also
demonstrate that an objection was raised based on the
FDF during effluent guidelines development or show why
it was not. (Id).
The EPA may also modify BAT requirements or
pretreatment requirements affecting nonconventional and
nontoxic pollutants if the economic capability of the
discharger requires less stringent limits [33 U.S.C. §
1311(g)]. The permitting agency may grant a variance from
BAT for several nonconventional, nontoxic pollutants,
such as ammonia, chlorine, color, iron and total phenols,
where applicable BATs are unnecessarily stringent. (Id).
Both the variance and the modification are granted on a
permit specific basis.
Water-Quality-Based Effluent Limitations (WQBEL)
WQBELs are imposed where TBELs are insufficient to
ensure water quality. WQBELs rely on the state water
quality standards (WQS), and consist of two elements:
(1) designated use classification and (2) criteria that are
used to protect the designated uses. Surface water quality
standards have become increasingly stringent during
the last decade. Consequently, the WQBELs required
in a NPDES permit for a particular pollutant are often
more stringent than the corresponding technology-based
effluent limitations.
Water Quality Standards. Water quality standards
(WQS) are numeric standards developed for each stretch
of a waterbody based on the designated uses. All states
must classify their waters according to intended uses,
for example, public drinking water, propagation of fish
and wildlife, recreation, industrial, agricultural, and other
uses [33 U.S.C. § 1313(c)(2)]. The WQS must also attain
the CWA’s goal of fishable or swimmable, if possible, and
must maintain both the current and designated uses
under the antidegradation policy, unless the state can
demonstrate that it is unattainable or infeasible [40 C.F.R.
§§ 131.10(g), 131.12].
Water quality criteria describe the physical, chemical,
and biological characteristics of waters necessary to attain
the designated uses. The EPA has developed numeric
657
surface water quality criteria for over 150 pollutants [33
U.S.C. § 1314(a)(1); 63 Fed. Reg. 67547 (Dec. 7, 1998)].
Each navigable water is assigned such criteria to ensure
that the water can support its designated use.
When the permitting agency determines that a
discharge causes, has the reasonable potential to cause, or
contributes to an in-stream excursion above the allowable
ambient concentration of state numeric criteria within a
state water quality standard for an individual pollutant,
the NPDES permit must contain effluent limits for that
pollutant [40 C.F.R. § 122.44(d)].
Toxicity-Based Limitations. Effluent limitations are
sometimes based upon Whole Effluent Toxicity (WET),
when it becomes difficult to set individual WQBELs [40
C.F.R. § 122.44(d)(1)(ii), (iii) and (iv)]. When the permitting
agency determines that a discharge causes, has the rea-
sonable potential to cause, or contributes to an in-stream
excursion of pollutants in amounts or combinations that
are toxic to humans, animals, plants, or other organisms,
the permit must contain effluent limits for WET. WET
limitations are incorporated into the NPDES permit and
require the permittee to perform toxicity testing on the
effluent. Toxicity tests expose various aquatic species to
one or more concentrations of effluent in the laboratory
to determine the short-term and long-term effects of expo-
sure. Most permits issued since the release of EPA’s WET
Guidance Document require conducting toxicity tests reg-
ularly, such as monthly or quarterly [40 C.F.R. § 136, 65
Fed. Reg. 46457 (July 28, 2000)].
STORMWATER DISCHARGES
Regulation of stormwater runoff has presented challenges
because stormwater runoff comes from diverse sources.
EPA estimates that about 30% of known pollution to
the nation’s surface waters results from stormwater
runoff. In 1987, Congress required EPA to establish
regulations and issue permits for stormwater discharges.
‘‘Stormwater’’ includes stormwater runoff, snowmelt
runoff, and surface runoff and drainage [40 C.F.R.
§ 122.26(b)(13)]. Stormwater does not include street
wash water or infiltration, water that enters a sewer
system below ground through defective pipes, pipe joints,
connections or manholes. Discharges to retention basins
that do not flow into waters of the United States or flow to
POTWs also do not require stormwater permits.
The stormwater program has been implemented in two
parts: Phase I and Phase II. The federal NPDES stormwa-
ter program relies on three types of permits: (1) The Con-
struction General Permit, (2) The Multi -Sector General
Permit, and (3) The Individual Permit. State agencies with
primacy generally have analogous permits. More informa-
tion on the federal stormwater program is available at
http://cfpub.epa.gov/npdes/home.cfm?programid=6.
The Phase I Program
Phase I regulations cover separate municipal storm
sewer systems (MS4s) serving populations over 100,000.
Discharges into MS4s are treated as discharges to waters
658 THE NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM
of the United States and require a NPDES permit (40
C.F.R. § 122.26). A MS4 is a conveyance or system of
gutters, ditches, man-made channels or storm drains,
owned by a state, county, municipality, or other public
entity, designed or used for conveying stormwater, and
is not a combined sewer or part of a POTW [40 C.F.R.
§ 122.26(b)(8)].
Phase I also regulates discharges from ‘‘areas asso-
ciated with industrial activities’’ in 11 categories listed
at 40 C.F.R. § 122.26(b)(14). The term ‘‘areas associ-
ated with industrial activities’’ covers discharges from any
point source used for collecting and conveying stormwa-
ter, which is directly related to manufacturing, processing,
or material storage at industrial facilities [55 Fed. Reg.
48007-15 (Nov. 16, 1990)]. The regulations break this def-
inition down into two parts: what types of facilities have
‘‘industrial activity’’ based on their facility’s Standard
Industrial Classification (SIC) and what portions of the
facilities include industrial activity. The portions of the
facilities that include industrial activity include industrial
plant yards, material handling sites, refuse sites, shipping
and receiving areas, manufacturing buildings, raw mate-
rial storage areas, etc. [40 C.F.R. § 122.26(b)]. Discharges
from areas separate from the industrial activities, such
as office buildings and parking lots and discharges from
facilities engaged in wholesale, retail, service, or commer-
cial activities are not included. [55 Fed. Reg. 48007 (Nov
16, 1990)]. Facilities covered by Phase I must apply for an
NPDES permit, unless otherwise exempt.
Exemptions are provided until March 10, 2003 for
industrial activities operated by municipalities with
populations less than 100,000. See 64 Fed. Reg. 68722
(Dec. 8, 1999). Light industrial facilities (SIC codes 20–39
and part of 42) with ‘‘no exposure’’ of industrial activities
or materials to stormwater are exempt under Phase I.
Permits for MS4s can be issued either for a particu-
lar system or on a jurisdiction-wide basis. MS4 permits
must control pollution to the maximum extent practi-
cable (MEP) [33 U.S.C. § 1342(p)(3)(B)(iii)]. The MS4
permit must also contain a requirement that prohibits
nonstormwater discharges into the system’s storm sewers.
Entities regulated under Phase I must obtain cov-
erage under either an Individual Permit or a General
Permit. Regulated entities must also implement stormwa-
ter pollution prevention plans (SWPPPs) or stormwater
management programs; both require BMPs that effec-
tively reduce or prevent the discharge of pollutants to
receiving waters.
The Phase II Program
On December 8, 1999, the EPA published the NPDES
stormwater management program Phase II Final Rule
[64 Fed. Reg. 68722 (Dec. 8, 1999)]. Facility operators
covered under Phase II must apply for permit coverage by
March 10, 2003, except for oil and gas small construction
activities which must apply by March 10, 2005 [67 Fed.
Reg. 79828 (Dec. 30, 2002)].
The Phase II rule subjects two new groups of permittees
to stormwater management: operators of small MS4s in
urbanized areas and small construction activities that
disturb 1–5 acres of land. The nonexposure exemption has
been extended to include all industrial activities other than
construction activities. The Phase II rule impacts about
5000 municipalities and federal systems such as military
bases and prisons. Regulated operators must implement
stormwater discharge best management practices (BMPs)
that reduce or prevent the discharge of pollutants to
receiving waters.
Stormwater Discharges Associated with Industrial Activities
Phase I contains a permitting component for industrial
stormwater. The operations of industrial facilities that
are within the 11 categories of ‘‘stormwater discharges
associated with industrial activity’’ [located at 40 C.F.R.
§ 122.26(b)(14)(i)-(xi)] that either discharge to a MS4 or
directly into waters of the United States must receive
a NPDES industrial stormwater permit. Operators of
industrial facilities can generally obtain either a general
or individual permit to satisfy the NPDES stormwater
permit requirement.
Conditional No Exposure Exclusion
‘‘No exposure’’ means that all industrial materials or
activities are protected by storms resistant sheltering
to prevent exposure to rain, snow, snowmelt, or runoff.
Certified facilities are not required to obtain a stormwater
permit. Applicants must submit the ‘‘No Exposure
Certification Form’’ every 5 years.
The no-exposure certification form is nontransferable.
All new owners or operators must complete, sign, and
submit a new form to claim the no-exposure exclusion.
Upon submission of the new owners’ form, the permitting
agency may inspect the facility to verify the claim.
A facility owner or operator who fails to maintain
nonexposure status could be liable for an unauthorized
discharge of stormwater. Under Phase II regulations, all
industrial activities, except for construction, are eligible
for exclusion.
The Multi-Sector General Permit
The Multi-Sector General Permit (MSGP) is designed to
regulate certain stormwater discharges from nonconstruc-
tion industrial activities [63 Fed. Reg. 52430 (Sept. 30,
1998)]. The MSGP is one large permit subdivided into 29
separate sectors based on the SIC system and/or narra-
tive descriptions. If a facility has operations that can be
described by more than one sector, then it must comply
with all pertinent requirements.
Facilities eligible for MSGP coverage must file a notice
of intent (NOI). The NOI is essentially a promise that
the applicant will comply with all MSGP conditions. The
applicant must also prepare and implement a Storm
Water Pollution Prevention Plan (SWPPP) prior to the
submission of the NOI. The applicant can look at the
MSGP for guidance on what to include in the SWPPP.
The SWPPP must create a Pollution Prevention Team
comprised of individuals who develop and implement the
SWPPP. The SWPPP must include a map of the facility,
an assessment of the potential sources of stormwater
pollution at the facility, and a list of BMPs. Generic BMPs
include ‘‘good housekeeping,’’ preventive maintenance,

spill prevention and response, employee training, record
keeping, nonstormwater discharge evaluation, erosion
control measures, and stormwater management measures,
as appropriate. Comprehensive site inspection/compliance
evaluations are required.
Stormwater discharges subject to an existing NPDES
permit cannot be covered under the MSGP until the
existing permit expires. If the existing permit contains
numeric standards that are more stringent than those
required in the MSGP, the MSGP will not be available
when the existing NPDES permit expires.
Stormwater Discharges Associated with Construction
Operators of both large and small construction activities
must obtain a NPDES construction permit if the activity
disturbs more than 1 acre or is part of a larger common
plan of development or sale that will disturb more than 1
acre and the discharge is to a water of the United States
or a MS4. The EPA requires that construction activities
obtain a general permit. Effective on July 1, 2003, a new
federal construction general permit is applicable to both
large and small construction sites [68 Fed. Reg. 39087
(July 1, 2003)]. States with primacy have developed their
own construction general permits.
There are two waivers available for small construction
sites. The first waiver is the rainfall erosivity factor (R).
The construction site operator must determine that the R
in the reused universal soil loss equation is less than five.
The second waiver is available operators in nonimpaired
waters or who certify that stormwater controls are not
needed, based on a total daily maximum allowance.
Separate Municipal Storm Sewer Systems (MS4)
Operators of large, medium, and regulated small MS4s
must obtain NPDES permits to discharge pollutants
and must develop stormwater management programs
to prevent harmful pollutants from entering MS4s by
stormwater runoff. Medium and large operators must
submit permit applications under Phase I. Regulated
small MS4s can choose among an individual permit, a
general permit, or a modification of an existing Phase
I MS4 individual permit. See Phase II Guidance, EPA
833-R-00-002 p. 4-1.
A ‘‘large MS4’’ is any MS4 located in an incorporated
place or county with a population of 250,000 or greater, as
of the 1990 Census. A ‘‘medium MS4’’ is any MS4 located
in an incorporated place or county with a population
from 100,000–249,999, as of the 1990 Census (40 C.F.R.
Part 122 App. F, G, H). Many MS4s in areas of less than
100,000 population were individually brought into the
Phase I program by NPDES. These regulated MS4s are
not required to develop a Phase II program. See EPA
Phase II Guidance, EPA 833-R-00-002, p. 4-2.
The Phase II program requires that certain small MS4s
obtain a NPDES permit. A ‘‘small MS4’’ is any MS4 not
already regulated under the Phase I definition of ‘‘small,’’
including federally owned systems, such as military bases
and veterans hospitals. See Phase II Guidance at p. 4-
3. Small MS4s can be regulated if the small MS4 is
wholly or partially located within an urbanized area, as
LEGAL PROTECTION FOR IN-STREAM FLOW 659
defined by the 2000 U.S. Census, designated by NPDES,
or designated by the permitting agency [40 C.F.R. §
122.32(a)(1), (2)]. Phase II requires that the permitting
agency develop and apply designation criteria to all small
MS4s located outside of an urbanized area that serves a
population of at least 10,000 and a population density of
at least 1,000 people per square mile.
Some MS4s receive a ‘‘physically interconnected’’
designation. Physically interconnected means that one
MS4 is connected to a second in a way that facilitates direct
discharges into the second system (Phase II Guidance,
EPA 833-R-00-002 at p. 4-3-5). The permitting agency
must designate most small MS4s located outside of an
urbanized area that contributes substantially to pollutant
loadings of a physically interconnected MS4 permitted
by the permitting agency. The NPDES permitting
authority may waive the coverage requirement in limited
circumstances. See Phase II Guidance at p. 4-10, 11. Phase
II allows operators of regulated small MS4s to choose from
three permit options, the general permit, an individual
permit, or a modification of an existing individual permit.
The permitting agency reserves the right to determine
which options are available to a regulated small MS4.
LEGAL PROTECTION FOR IN-STREAM FLOW
MELINDA R. KASSEN
Trout Unlimited, Colorado
Water Project
Boulder, Colorado
Water is precious. Human society needs water for
drinking, other municipal uses, crops, and stock watering,
as well as for industrial, aesthetic, and recreational
purposes. But water left flowing through the landscape
also has value, as it sustains every component of
an ecosystem.
Water in rivers and lakes creates aesthetic value,
as well as habitat for thousands of water-dependent
species. Such species include aquatic species—fish,
insects, amphibians, and plant life—as well as the land-
based animals that eat them. Water flowing in a natural
hydrograph helps maintain water quality. In addition,
flowing rivers and streams can provide significant
recreational amenities that feed local economies from
fishing and boating or secondary activities such as hiking
and bird-watching.
For most of recorded history, there has been enough
water to supply humanity’s needs without worrying
about how removing water from streams for human use
might affect other water-dependent species. However,
because of significant human population growth, enhanced
appreciation for the importance of protecting natural
ecosystems, and increased concern about sustainability,
societies have begun to provide legal protection to water
left in a stream for the benefit of both water-dependent
species and the people who use and enjoy the natural
environment. These concerns have surfaced more in the
western part of the United States than in the east,
but concerns now arise even in less water-short areas.
660 LEGAL PROTECTION FOR IN-STREAM FLOW
Moreover, in view of a recent United Nations statement
that one out of three people globally will face a water
shortage by the year 2025, making water the commodity
likely to cause controversy during the twenty-first century
as oil did in the twentieth, understanding competing water
uses and values is critical throughout the world.1
STATE PROTECTION OF IN-STREAM
VALUES—WESTERN STATES2
In the United States, states, rather than the federal
government, have primary authority over water allocation.
Those states west of the 100th meridian are, for the most
part, arid or semiarid. Since early in their settlement,
they have found a need to reconcile disputes between
water users; each of these states follows the doctrine of
prior appropriation to allocate water among competing
users.3 Each state’s system is unique, but their systems
share many features. Most importantly, these systems
define the value of water in terms of its use, and until
late in the twentieth century, this meant use out of the
stream. The prior appropriation system did not recognize
any value for leaving water in a stream. Because the
prior appropriation system functions as a seniority system,
where the earliest user of a river retains always the first
right of use, the system has created a challenge today for
states and others seeking to protect remaining in-stream
values, where water is ‘‘unused’’ except in sustaining the
environment or by recreationists in a non-consumptive
manner. Because water allocation is primarily a function
of state law, the means to protect in-stream values must
also be found primarily in the systems states use to allocate
quantities of water to various uses.
All but three western states (New Mexico, North
Dakota, and Oklahoma) provide some in-stream flow
protection.4 States use three different types of programs:
legislatively established in-stream flows, agency actions
to create or enforce in-stream flow rights, and private or
market mechanisms to protect in-stream flows.
States vary in the methodology they use to quantify in-
stream flow protection levels. Some, like the Tennant and
R2Cross methods, look at a few simple variables, such as
maximum flows, velocity, depth and wetted perimeter, and
input them into a model that calculates minimum flows.
States whose programs protect only minimum flows, such
as Colorado and Wyoming, use these methods.5 Others,
like instream flow incremental methodology (IFIM) or
physical habitat simulation system (PHABSIM), model the
habitat requirements for aquatic species. Finally, there is
1 6
Statement of the UN-sponsored Third World Water Forum,
Stockholm, Sweden, released August 13, 2001.
2 8
Statistics in this section date from December 2001
3 9
The prior appropriation system is the subject of another entry in
this Encyclopedia.
4 11
Gillilan and Brown, Instream Flow Protection, Island Press
1997, pp. 121-22. A 1998 New Mexico Attorney General opinion
expands the definition of beneficial use there to include in-stream
protection, but no court has affirmed the opinion and no entity
has yet applied for an in-stream flow right.
5 14
See, Wyo. Stat. Ann. §43.3.1001(c), (d); Colo. Rev. Stat. 37-92-
102(3).
the indicators of hydrologic alterations model developed
by The Nature Conservancy; this model yields results that
more closely mimic a natural hydrograph.
State Legislative Actions
In Montana, Kansas, and Idaho, the legislatures establish
or approve agency recommendations for in-stream rights.
Montana created a dozen such rights for blue-ribbon trout
streams in a one-time effort in 1969.6 Idaho has legislated
nine stream flows or lake levels,7 and Kansas has adopted
statutory protection for 32 watercourses.8 In addition,
in 2000, Montana closed the Bitterroot entirely to new
appropriations to protect the recreation and farm based
economy of the area, both of which need water flowing
downstream.9
State Agency Actions
Many Western states allow only state agencies to hold
in-stream flows. Even so, neither Kansas nor Texas has
recognized any in-stream flow rights; Nebraska has fewer
than five. Pursuant to his statutory authority,10 the
Wyoming state engineer has approved 13 applications
for new water rights from the state Game and Fish
Commission to protect in-stream flows, but has only
adjudicated two; adjudication is a prerequisite for
enforcement. Sixty-nine applications await decision.
Montana gives any state or federal agency the ability
to apply for an in-stream reservation of up to 50% of a
stream’s average annual flow, and Montana’s Department
of Fish, Wildlife, and Parks now holds in-stream flow
reservations on the main-stem Missouri and Yellowstone
Rivers.11
Colorado and Oregon have the most extensive programs
for in-stream protection.12 In Oregon’s program, the
responsible state agency limits other diversions based on
in-stream levels established for more than 1400 stream
reaches.13 On the streams where these levels exist, it is
virtually impossible to obtain a new diversionary right;
moreover, Oregon actively enforces its rights. In Colorado,
where all water rights are a matter of court decree, the
state, which has the exclusive authority to hold in-stream
protection flows, has applied for and obtained more than
1350 water rights since 1973.14 Unlike the situation in
Oregon, however, Colorado’s in-stream flow decrees do
not automatically stop additional future development.
Because Colorado also has no field personnel to monitor
its rights and few gauges to measure their flows, Colorado
has only once made one ‘‘call’’ on the river to demand that
Act of March 13, 1969, ch. 345, Mont. Laws 879-81.
7
Idaho Code, §67-4301
Kan. Stat. Ann. §82-703(c).
Mont. Stat. §85-2-344.
10
Wyo. Stat. Ann. §41-2-1001, et seq.
Mont. Code Ann. §85-2-316.
12
Colorado holds these rights pursuant to Colo. Rev. Stat. §37-92-
102(3).
13
Oregon holds these rights pursuant to Or. Rev. Stat. §§537.332
to. 360.
These rights protect 8100 miles of more than 107,000 miles of
state streams.

junior appropriators’ diversions be curtailed to satisfy
the Board’s in-stream right. Instead, Colorado objects
to applications for changes of water rights that might
adversely affect the state’s in-stream flow and negotiates
court settlements that rely on others to monitor the state’s
rights. In both states, only the state agency owner of the
right may enforce the rights with a call; members of the
public must rely on the agencies.
Idaho has had a minimum stream flow statute on
the books since 1937.15 However, the program does
not allow for new in-stream flow protective rights on
streams that are otherwise fully appropriated—and
most Idaho streams have long been overappropriated,
so the statute provides little protection. Instead of
obtaining water rights, the Idaho’s Department of Water
Resources has protected about 100 streams by adopting
recommendations in its state water resources plan for
minimum stream flow reservations for recreation or
natural resources.16
The State of Washington follows a similar strategy.
In 19 of its 62 water resources inventory areas, as well
as the Columbia River, the state has adopted in-stream
resource protection programs that establish minimum
stream flows.17 The state conditions later-issued water
rights on meeting these flows. In addition, the state
agency responsible for water rights has closed portions
of the Yakima River Basin to further groundwater
appropriations (at least pending further study) to keep
some of this basin’s water in-stream.18
Most states whose agencies have the power to protect
in-stream flows acted only after 1970—in a region
where traditional water rights date back to the mid-
nineteenth century. Given that the prior appropriation
doctrine values water rights based on their seniority
and given that a senior user may dry up a stream
entirely before junior users are entitled to any water,
the junior nature of states’ in-stream flows still leave
agencies unable to protect—let alone restore—healthy
stream flows. For example, Colorado has fewer than 15
rights whose priorities date earlier than 1973; in a state
where most rivers were overappropriated at the beginning
of the twentieth century, these rights can protect against
additional future depletions but do little to restore already
damaged fisheries to health. The state acquired its few,
highly valuable senior rights by donation from cities
seeking to protect streamfront amenities, and in one case,
from a private conservation group. Wyoming also has the
authority to acquire traditional existing rights by transfer
or gift and change these rights to instream flow purposes,19
but the state has never done so.
Some state agencies allowed to hold in-stream rights
may not make new appropriations for such rights but
15
Idaho Code §42-1501 et seq.
16
Idaho Code, sec42-1734A.
17
Washington State Depts. of Ecology and Fish and Wildlife, ‘‘A
Guide to Instream Flow Setting in Washington State.’’ Pub. No.
03-11-007, p. 23 (March 2003).
18
Ground Water/Surface Water Interactions to be Studied in
Yakima River Basin, Department of Ecology Focus No. 99–1817,
August, 1999.
19
Wyo. Stat. Ann. §41-3-1007.
LEGAL PROTECTION FOR IN-STREAM FLOW 661
may only change existing rights or acquire previously
consumptive rights by donation. This is true in Utah,
where the Division of Wildlife Resources holds five in-
stream flow rights.20 California and Arizona agencies may
also accept such transfers.
Finally, some states can protect in-stream flows by
denying other new diversionary applications. A statute
directs the Utah state engineer to ensure that no new
diversion will ‘‘unreasonably affect public recreation or
the natural stream environment.’’21 However, the state
engineer has never relied exclusively, or even primarily,
on this provision to deny a new or changed application
for a water right. Oregon also has a ‘‘public interest’’
test, and though the state has never denied a new permit
based on this test, Oregon has adopted rules pursuant
to this provision that make it difficult to obtain a new
water development permit where there are sensitive stocks
of fish.22
Public Trust Doctrine
The public trust doctrine also plays a role in protecting
in-stream water resources. Evolved from the laws of the
Roman Empire, this doctrine holds that a state holds
certain resources in trust for the benefit of society at large
because of their public values. The ancient Romans applied
the doctrine to the ownership of navigable rivers and
harbors, which were held in trust by the state to protect
the public’s interest in commerce, navigation, and fishing.
This concept was subsequently adopted by the English
courts and applied to lands beneath tidal waterways.
In this country, states assumed this trust responsibility,
including the ability to forbid private ownership of public
trust resources. For example, the U.S. Supreme Court
read the public trust to require automatic state ownership
of submerged lands beneath navigable waters.23 The
Court then added that the states could not sell trust
lands if the transfer would unduly burden public fishing,
navigation, and commercial rights.24 Because the public
trust doctrine is primarily an aspect of state law, its
application varies widely between states. Whereas the
Colorado courts have never recognized the public trust
doctrine as applied to water resources, California has used
the doctrine aggressively to protect both lands and waters.
The California Supreme Court found that its state water
agency, the State Water Resources Control Board, had
to consider public trust values in permitting new water
withdrawals and also in reviewing existing withdrawals.25
Thus, Los Angeles had to curtail existing diversions by
one-third from tributaries of Mono Lake until the lake
level recovered to a certain elevation.
Private and Market-Based Efforts
In some states, private entities can augment state
programs that protect in-stream flows. The states of
20
Utah Code Ann. §73-3-3(11)(g)(1989 & Supp. 2001).
21
Utah Code Ann. §73-3-8(1).
22
OAR 690, Div. 33.
23
Pollard v. Hagan, 44 U.S. 212 (1845).
24
Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892).
25
National Audubon Society v. Superior Court of Alpine County,
658 P.2d 709 (Cal. 1983).
662 LEGAL PROTECTION FOR IN-STREAM FLOW
Oregon and Washington have nonprofit water trusts
that purchase mostly small quantities of water in the
tributaries of targeted river basins dedicated to in-stream
flow protection. In most cases, these purchases are for
short periods of time. For example, although the Oregon
Water Trust, has made more than one dozen permanent
acquisitions (where it transfers the rights to the state),
most are short-term leases, from 1–10 years. Still, the
Trust has brokered more than 50 deals protecting 450
river miles. In addition, the Trust is helping irrigators
take advantage of Oregon’s conserved water program,
which allows a water user who conserves water to use
75% of that water, provided that the user turns 25% back
to the stream.26
Montana’s program allows government agencies or
nonprofit entities to lease water that is currently put
to beneficial use through a diversion for in-stream flow
protection for up to 30 years.27 The state agency for fish,
wildlife, and parks has entered into 10 leases under
this provision. Trout Unlimited, a private conservation
organization, has entered into fewer than 10, but at
least one of TU’s leases put 200 cfs into the Madison
River, a quantity of substantial and significant magnitude.
Montana also allows private water users to change a
traditional diversionary right temporarily for in-stream
purposes.28 The change can last 10 years for a direct flow
right and up to 30 years for water coming out of storage.
Only one water diverter has sought (and been granted) a
temporary change, as of 2001.
Alaska, Arizona, Nevada, and California also allow
individuals to hold in-stream rights permanently. Anyone
may transfer existing rights to in-stream reservations
in Alaska,29 although these reservations must undergo
review every 10 years, a hurdle no other water right must
jump. Two government agencies have obtained such rights,
and several private entities have pending applications.
Under its statute,30 Arizona has received 85 appli-
cations for new in-stream flow rights from individuals,
environmental groups, and several federal agencies. Of
these, the state has permitted 25 and perfected another 23
(after the applicants demonstrated actual use for 3 years).
In addition, in 1997, the state used its Water Protection
Fund to purchase unused Central Arizona Project water
to sustain riparian habitat.
In California, an individual may not make a new
appropriation for an in-stream flow right but may convert
an existing diversionary right to in-stream protection;
however, in 2001, 8 years after passage of this statutory
provision, the Water Resources Control Board had yet to
grant a single in-stream permit.
At least one federal agency has obtained a new in-
stream flow water right in Nevada.31 In addition, since
1988, Nevada has allowed the transfer of existing water
rights to in-stream use. Both government agencies and
26
Or. Rev. Stat. §537.455.
27
Mont. Code Ann. §85-2-408(2).
28
Id.
29
Alaska Code Ann. §46.15.145.
30
Ariz. Rev. Stat. §45–151.
31
State v. Morros, 766 P.2d 263 (1988).
private organizations have done so; in one case off-
stream rights were transferred to protect streams on the
Stillwater Wildlife Refuge.
South Dakota has no express statutory authority for
in-stream flows, but the state Supreme Court has held
that diversion of water was not necessary to achieve a
beneficial use of water under state law.32 As a result, the
state has awarded several in-stream water rights, two
new rights to a state agency, one to a federal agency and
a change to a private company. In 2001, there were two
additional applications pending.
Conclusion
Most states have some power to maintain, if not restore,
healthy stream flows, but few have made such protection
a priority. Western states water law systems simply do
not make in-stream flow protection easy, and at the same
time the region must accommodate significant growth.
Given the limitations described above (little enforcement,
seniority, or measurement), many state programs provide
more of an illusion of protection than real water in-stream.
STATE PROTECTION OF IN-STREAM
VALUES—EASTERN STATES
The wetter United States east of the Mississippi River
follows a system of water allocation different from that of
Western states. In the East, the riparian doctrine prevails,
under which riparian landowners, those adjacent to a
waterbody, have a right to use a portion of the flow of
the stream or lake.33 Although originally, a riparian water
user could not diminish the natural flow of the stream,34
today, holders of riparian rights can consumptively
use water—even outside the watershed—if the use is
‘‘reasonable.’’35 Today, urban, industrial, and agricultural
demands have increased to the point that water resources
are sometimes scarce in riparian jurisdictions.
To protect the public’s interest in a reliable water
supply, many riparian states require even landowners
to obtain permits before using any water. Essentially,
permits serve as a means for a state to quantify existing
water uses and give the permit holder a right to use a
quantity of water permanently or for a limited time. The
permit requirement limits the number and size of water
rights that come with riparian property ownership.
Most riparian states recognize water as a public
resource and have taken steps to protect public recre-
ational, environmental, and aesthetic values. Thus, these
states have passed statutes to protect stream flows. In
addition, many of these states have established mini-
mum stream flows, lake levels, and groundwater levels
or delegated the authority to set these levels to a state
agency.
32
DeLay v. US Fish and Wildlife Service, 524 NW2d 855 (S.D.
1994).
33
See National Water Commission, A Summary-Digest of State
Water Laws 32 (Richard Dewsnup & Dallin Jensen eds., 1973).
34
Tyler v. Wilkinson, 24 F.Cas. 472 (C.C.R.I. 1827)
35
Stratton v. Mt. Hermon Boy’s School, 103 N.E. 87 (Ma. 1913).

For example, Florida has authorized its Water Man-
agement Districts to set seasonal minimum flow levels
for both surface and groundwater.36 ‘‘Minimum flow’’ is
‘‘. . .the limit at which further withdrawals would be signif-
icantly harmful to the water resources or [area] ecology.’’37
Further diversions may not occur below the established
minimum. When existing flows or levels do fall below or
are projected to do so within 20 years, the state must
implement a ‘‘recovery or prevention strategy.’’38
New Hampshire’s Rivers Management and Protection
Program takes a different approach.39 There, the state
develops ‘‘river corridor management plans’’ to maintain
in-stream flows along designated rivers after someone
nominates the river for protection. Once accepted, the
nomination must undergo court review and legislative
approval. The rules to implement this program establish
a general standard of in-stream flow protection for all
designated rivers.40
FEDERAL LAW PROTECTION OF IN-STREAM VALUES
State law is the primary vehicle for water allocation
decisions, but the federal government also plays a role.
This is true in part because the federal government is a
major landowner, particularly in the West. In addition,
the federal Bureau of Reclamation owns and operates a
massive system of water projects that controls the flows
on many Western rivers. Finally, the nation’s web of
environment and natural resources law intersects with
the goal of river protection.
Federal lands reserved for specific purposes, such as
national parks, monuments, forests, and refuges, almost
always need water. At the beginning of the twentieth
century, the U.S. Supreme Court held that in reserving
lands, Congress had implicitly reserved as well the water
to fulfill the purpose of the reservation and also that the
water right’s priority date would be the date of the initial
Congressional reservation, not the later year in which the
federal government sought to quantify its right.41 In 1954,
Congress passed the McCarran Amendment, a statute
directing the federal agencies to obtain these reserved
water rights through the individual state systems of water
allocation.42
Only in the 1970s did federal agencies begin in earnest
to enter state systems to obtain and quantify their
rights. Unfortunately, given the Western states’ system
of prior appropriation, the time lag between the date the
federal land was reserved and the year when the federal
government sought to confirm its water rights has proved
devastating to this federal effort. Much of the West was
unsettled in the early twentieth century; since that time,
large cities have grown, farming has continued to divert
36
Fla. Stat. §373.042 (2001).
37
Id. at §373.042 (1)(a).
38
Id. at §373.042 2(a), 2(b).
39
N.H. Rev. Stat §§ 483:1–483:15.
40
Rules for the Protection of Instream Flow on Designated Rivers,
Chap.Env-ws 1900(2003). This document is available online at:
http://www.des.state.nh.us/rules/env-ws1900.pdf.
41
Winters v. US, 207 U.S. 564 (1908).
42
43 U.S.C.A. §666.
LEGAL PROTECTION FOR IN-STREAM FLOW 663
80–90% of the water used, and new industrial needs
for water have been created—from heap leach mining
to oil shale extraction to ski area snowmaking. These
intervening water users are unwilling to remain passive
when the federal government seeks to jump the seniority
line and gain water rights for its lands.
As a result, almost all adjudications of reserved rights
have been controversial. In most cases involving national
forest lands, the Forest Service has failed to obtain
meaningful protection for the rivers crossing its lands,
even though its mandate includes the command to provide
favorable flows.43 The National Park Service and U.S. Fish
and Wildlife Service on behalf, respectively, of national
parks and the wildlife refuge system have fared marginally
better; yet even these agencies have failed frequently to
obtain protective flows. In Colorado, the Park Service
failed to obtain a right to protect the rivers within
Dinosaur National Monument.44 More recently, the Idaho
Supreme Court denied the U.S. Fish and Wildlife Service
a reserved right for the Deer Flat National Wildlife Refuge
made up a series of islands in the Snake River.45
Some federal agencies also use administrative mech-
anisms to protect stream flows when making permitting
or licensing decisions. Thus, wholly outside state water
allocation systems, federal agencies impose bypass flows
to fulfill requirements that derive from federal laws, such
as the Federal Power Act, the Clean Water Act, and the
Federal Land Management and Policy Act, as well as
the agencies’ authorizing statutes, for example, the For-
est Service Organic Act. In part because the use of this
authority has sometimes limited validly issued state water
rights, agency exercise of this authority has proved highly
controversial and is thus used sparingly, if at all.
The Clean Water Act provides two mechanisms for
protecting in-stream values to any state willing to
use them. First is the state water quality certification
program.46 Under its provisions, a state must certify that
a federally permitted or licensed project will meet state
water quality standards. Pursuant to this authority, the
State of Washington imposed substantial flow restrictions
on a hydropower facility on the Olympic peninsula; in
1994, the U.S. Supreme Court upheld these restrictions.47
Second is the total maximum daily load (TMDL) program’’
which arguably provides states a mechanism to protect
flows through water quality regulation.48 Here, states
must list streams whose water quality is impaired.49 Then,
states must establish TMDLs that will bring the streams
back into compliance. Recently, the EPA determined
that the federal government cannot impose flow-based
conditions in TMDLs, yet the states, which have primary
43
See, e.g., US v. New Mexico, 438 U.S. 696 (1978); Potlatch Corp.
v. US, 12 P.3d 1260 (2000), US v. City & County of Denver, 656
P.2d 1 (Colo. 1982) (US v. Denver).
44
US v. Denver.
45
US v. State, 23 P.3d 117 (Idaho 2001).
46
33 USC §1341.
47
PUD No. 1 of Jefferson County v. Washington Department of
Ecology, ## US 700 (1994).
48
The total maximum daily load (TMDL) program is the subject
of a separate entry in this Encyclopedia.
49
33 USC §1333(d).
664 WATER QUALITY
responsibility for this program, can. Montana, for example,
has adopted a flow-based TMDL for an impaired stream,
a tributary of the Yellowstone River.50
The Endangered Species Act (ESA) provides federal
agencies another handle for restoring stream flows
when such flows are necessary to avoid jeopardizing an
endangered or threatened species’ existence. Again, the
use of this authority is highly controversial. In one recent
case, a federal court upheld the U.S. Forest Service’s
imposition of a bypass flow to protect an endangered
species as consistent with both the ESA and the Forest
Service’s own Organic Act.51 Some water users who have
received less water from federal projects as a result of
actions taken under the ESA have begun to challenge
these federal actions as ‘‘takings’’ of their property rights
without compensation, in violation of the 5th amendment
to the U.S. Constitution.52 In the summer of 2001, such a
curtailment occurred to benefit both endangered salmon
and lake fish sacred to the Klamath tribe that has resulted
in a firestorm of litigation and proposed legislation.
On the other hand, ESA mandates have forced some
creative responses. The Middle Rio Grande Conservancy
District, embroiled in litigation over recovery of the silvery
minnow, created a water bank to allow users to lease
surplus water, at least some of which may go to keep
critical Rio Grande reaches wet. New Mexico and the
federal government have also reached an agreement to
operate federal reservoirs in the Rio Grande basin to
release stored water for in-stream flows to maintain
minnow habitat. An even larger effort is beginning in
California. There, parties trying to address endangered
species concerns in the San Francisco Bay Delta created
the Environmental Mitigation Bank to trade water to
benefit the ecosystem.53
Finally, due to the existence of major federal water stor-
age projects throughout the West, interests have pressured
the federal agencies—owners of these projects—to change
their operation. Primarily to benefit endangered species,
but also to enhance recreation and other values, reopera-
tion of federally owned or licensed storage and hydropower
facilities can enhance river flows in a way that restores,
or at least maintains, aquatic species. This has occurred
to benefit endangered species in the Rio Grande, the Kla-
math, and the Columbia Rivers, along with many lesser
known systems where endangered species live. Through
the ‘‘CalFed’’ project, California reoperations have bene-
fited people as well as endangered species.
50
Montana Department of Environmental Quality, Big Creek
Flow Restoration Plan (TMDL), December 2000.
51
County of Okanogan v. Nat’l Marine Fisheries Service, 57ERC
1321, 2003 WL 22455482 (9th Cir. 2003) (not selected for
publication in Federal Register).
52
Tulare Lake Basin Water Storage District v. United States, 49
Fed. Cl. 313(2001).
53
For information about this venture, see, CalFed Bay-Delta
Program, Programmatic Record of Decision (2000), pp 54–59.
[Note: this document is available online at http:// calwa-
ter.ca.gov/Programs/Environmental Water account/adobe pdf/
ROD8-28-00.pdf.]
CONCLUSION
State water law systems grew out of a nineteenth century
worldview that believed that all resources are endless.
Therefore, it is not a surprise that governments struggle
today to protect in-stream values. But, because of the
pressures exerted on the system as a result of modern
environmental values, decision-makers are seeking ways
to ensure that at least some of the country’s waterways
maintain healthy flows.
WATER QUALITY
U.S. Geological Survey
APPLICABLE STATUTES
Clean Water Act (PL 92–500; 33 U.S.C. 1251 et seq.)
Safe Drinking Water Act (PL 93–523; 42 U.S.C. 300f-j-
26)
CLEAN WATER ACT, AS AMENDED (PL 92–500; 33 U.S.C.
1251 ET SEQ)
Purpose
Also known as the Federal Water Pollution Control Act,
it is the objective of the Clean Water Act (CWA) ‘‘to
restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters’’. Seven goals and policies
are declared in order to meet this objective. One goal
was to reach zero discharge of pollutants by 1985. Others
include providing funding for the construction of publicly
owned treatment works (POTWs), creating a nonpoint
source pollution program, and generally, and making the
waters of the U.S. ‘‘fishable and swimmable’’. Although not
specifically stated in this declaration, the CWA contains
the nation’s most noteworthy wetlands legislation.
MAJOR PROVISIONS BY SECTION
201–209 (33 U.S.C. 1281–1289)—Grants for Construction
of Treatment Works.
These sections originally provided federal grants for the
construction of wastewater treatment plants. The program
has been phased out by the 1987 amendments in favor of
a revolving loan fund.
301 (33 U.S.C. 1311)—Effluent Limitations
The discharge of any pollutant into the nation’s waters
except for discharges in compliance with the CWA is
prohibited, according to this section. Limitations are
placed on existing sources which vary according to the
nature of the pollutant discharged and to where the outfall
is directed.
This article is a US Government work and, as such, is in the
public domain in the United States of America.

302 (33 U.S.C. 1312)—Water Quality Related Effluent
Limitations
Point sources which interfere with the attainment or
maintenance of desired water quality are subject to the
imposition of more stringent effluent limitations.
303 (33 U.S.C. 1313)—Water Quality Standards and
Implementation Plans
Water quality-based regulatory controls on dischargers
known as Water Quality Standards (WQS) are required
by states to protect designated uses of water bodies. Tech-
nological capability is not a consideration in setting WQS.
304 (33 U.S.C. 1314)—Information and Guidelines
This section requires the EPA to develop water quality cri-
teria and guidelines for effluent limitations, pretreatment
programs, and administration of the National Pollutant
Discharge Elimination System (NPDES) program.
306 (33 U.S.C. 1316)—National Standards of Performance
A list of categories of effluent sources is presented which
specifies that each of the industries listed must conform
to technology-based new source performance standards.
The standards are to demonstrate the best demonstrated
control technology.
307 (33 U.S.C. 1317)—Toxic and Pretreatment
Effluent Standards
This requires that industries discharging toxic pollutants
meet effluent limits that employ the best available
technology economically achievable. Part (b) mandates the
establishment of pretreatment standards while part {c}
looks at new sources of pollutants into publicly owned
treatment works (POTWs).
309 (33 U.S.C. 1319)—Enforcement
Enforcement by the states, as well as compliance
orders, and administrative, civil, and criminal penalties
are authorized.
311 (33 U.S.C. 1321)—Oil and Hazardous
Substance Liability
The Congressional declaration of policy against discharges
of oil or hazardous substances in harmful quantities into
waters and adjoining shorelines is presented. A spill
prevention, control, and countermeasure plan is to be
developed by all facilities that handle, transport, and store
oil. Any spill or discharge of a harmful quantity of oil
must be reported to the National Response Center. Strict
liability is assigned to owners or operators of facilities
from which oil discharges occur.
319 (33 U.S.C. 1329)—Nonpoint Source
Management Programs
This section requires that states identify waters that are
not able to meet WQS because of nonpoint sources. The
activities responsible for the pollution are to be identified
WATER QUALITY 665
and a management plan is to be created to help correct the
nonpoint source problem.
401 (33 U.S.C. 1341)—Certification
Any applicant for a Federal license or permit to conduct
any activity which may result in any discharge into the
navigable waters, shall provide the licensing or permitting
agency a certification from the State in which the discharge
will originate.
402 (33 U.S.C. 1342)—National Pollutant Discharge
Elimination System
One of the most critical parts of the CWA is the estab-
lishment of the National Pollutant Discharge Elimination
System which translates standards into enforceable lim-
itations. This program may be administered by the EPA
or states under EPA-delegated authority. After an oppor-
tunity for public hearing, a permit may be issued for the
point source discharge of any pollutant, or combination
of pollutants.
404 (33 U.S.C. 1344)—Permits for Dredged or Fill Material
This is the major wetlands provision of the CWA, and
largely, in environmental law. The basic gist of this
section is that a permit is required from the U.S.
Army Corps of Engineers for the disposal of dredged or
filled materials into navigable waters, notably wetlands,
with EPA concurrence, and notice and opportunity for
public hearings.
505 (33 U.S.C. 1365)—Citizen Suits
Any citizen is given the right to file suit against any
person in violation of an effluent standard or against EPA
for failure to perform nondiscretionary duties.
PERTINENT REGULATIONS
• 33 CFR Part 320—General Regulatory Policies,
Army Corps of Engineers
The Corps issues permits under several different
acts, the CWA being only one of them. The Corps
must issue permits for discharges to insure that they
comply with the applicable limitations and WQS.
Section 320.4 describes the general policies that the
Corps will follow in reviewing all Department of the
Army permits. Such permits are to consider public
interest, effect on wetlands, fish and wildlife, water
quality, property ownership, energy conservation,
navigation, environmental benefits, and economics,
among other things. The pertains particularly to
dredge and fill permits covered under 404 of the CWA.
• 33 CFR Part 323, Permits for Discharges of
Dredged or Fill Material into Waters of the
United States, Army Corps of Engineers
Contains definitions and special policies, practices
and procedures to be followed by the Corps in
connection with review of permit applications for
the discharge of dredged or fill materials under 404
of CWA. Permits issued under 404 are required
666 WATER QUALITY
for the discharge of dredged or fill materials not
exempted by 323.4 of this part or permitted by 33
CFR Part 330. Please refer to 323.4 for a detailed
listing of exemptions.
• 33 CFR Part 325—Processing of Department of
the Army Permits, Army Corps of Engineers
Contains general processing procedures for all
Department of the Army permits. Attention is
given to dredge and fill activities in 325.1(d)(3) &
(4). Federal agencies that initiate or authorize
proposed actions that include dredge or fill discharge
operations must ensure that the appropriate permits
are obtained. In states with approved programs,
permit application is done through the appropriate
State agency.
• 40 CFR Part 110—Discharge of Oil,
EPA
This section reiterates the mandate of 311(b)(3) of
the CWA. It generally prohibits the discharge of
oil into navigable waters in such quantities as may
be harmful.
• 40 CFR Part 112—Oil Pollution Prevention,
EPA
This requires that owners or operators of non-
transportation related onshore and offshore facilities
engaged in any type of oil and gas operation prepare a
Spill Prevention Control and Countermeasure Plan,
and provide guidelines for preparation of the plan.
Such a plan may be required of an applicant for
USGS approval of any oil and gas activities.
• 40 CFR Part 122—EPA Administered Permit
Programs: The National Discharge Elimination
System, EPA
Contains definitions and basic permitting require-
ments for EPA-administered NPDES programs
under 318, 402, and 405 of the CWA. Permit appli-
cations and special NPDES program requirements
are discussed in Subpart B. This is followed by per-
mit conditions in subpart C. Subpart D covers the
transfer, modification, revocation and reissuance,
and termination of permits. Federal agencies that
initiate or authorize proposed actions that include
point source operations must ensure that the appro-
priate permits are obtained. In states with approved
programs, permit application is done through the
appropriate State agency.
• 40 CFR Part 123—State Program Require-
ments, EPA
Describes the general requirements and additional
requirements for states and the EPA to obtain and
give approval, revision, and withdrawal of state
NPDES programs. State program information shall
be made available to EPA upon request. EPA also has
the right to review proposed general permits for 90
days.
• 40 CFR Part 125—Criteria and Standards for
the National Pollutant Discharge Elimination
System, EPA
This section prescribes criteria and standards for var-
ious requirements imposed as conditions for NPDES
permit approval. Some of the criteria expanded upon
are those presented for the imposition of technology-
based treatment requirements in permits as given
under 301(b) and 402(a)(1), those for modifying sec-
ondary treatment requirements under 301(h), those
for Best Management Practices authorized under
304(e), and those applying to ocean dumping, in Sub-
parts A, G, K, & M, respectively.
• 40 CFR Part 129—Toxic Pollutant Effluent
Standards, EPA
This section designates toxic pollutant effluent
standards and applies to owners or operators of
specified facilities discharging into navigable waters.
Section 129.4 listed the pollutants to be regulated.
Each owner/operator is given 60 days to notify the
Regional Administrator of any listed pollutant that
is discharged. Much of the regulation gives specific
information on each of the toxic pollutants.
• 40 CFR Part 130—Water Quality Planning and
Management, EPA
Section 303 of the CWA gives the authority for
promulgation of water quality standards (WQS)
by states. Here, policies are established for water
quality planning, management, and implementations
of 303. The Water Quality Management process from
the CWA provides the authority for a ‘‘consistent
national approach for maintaining, improving and
protecting water quality while allowing States to
implement the most effective individual programs’’.
After WQS are set by each state, implementation
of the standards may be achieved by issuing
permits, building publicly-owned treatment works,
or instituting Best Management Practices (BMP)
through a water quality management plan. Total
maximum daily loads (TMDL) and individual water
quality-based effluent limitations are discussed in
130.7. States are required to submit water quality
reports to the Regional Administrator in accordance
with 305(b) of the CWA (130.8). Final points of
the regulation cover state submittals to EPA and
program management.
• 40 CFR Part 131—Water Quality Standards,
EPA
While Part 130 of this title works with water quality
management, this section deals with water quality
standards (WQS). It is stated that a WQS defines the
water quality goals of a water body by designating
the uses to be made of the water and by setting
criteria necessary to protect the uses. WQS should
be set to provide for the protection of fish, shellfish,
wildlife, water recreation, and the use and value of
public water supplies, agricultural, industrial, and
other purposes. The procedures are presented for
developing, reviewing, revising and approving WQS
by the states and EPA. In 131.12, states are ordered
to develop statewide antidegradation policies. WQS
shall be reviews at least every three years by
the states.
• 40 CFR Part 230—Section 404 (b)(1) Guidelines
for Specification of Disposal Sites for Dredged
or Fill Material, EPA

These guidelines were written to restore and
maintain the chemical, physical, and biological
integrity of the U.S. through the control of discharges
of dredged or fill material, with the guiding
principle that degradation of sites may represent
an irreversible loss of valuable aquatic resources.
In Subpart B, it is stated that ‘‘no discharge
of dredged or fill material shall be permitted if
there is a practicable alternative to the proposed
discharge which would have less adverse impact
on the aquatic ecosystem’’. The permitting authority
must determine the potential effects of dredging or
filling activities on the components of the aquatic
environment.
• 40 CFR Part 231—Section 404(c)Procedures,
EPA
Contains procedures for EPA in exercising its
authority to veto the specification by the Army Corps
of Engineers or by a State of a disposal site for a
404 permit.
• 40 CFR Parts 401-471—Effluent Guidelines and
Standards, EPA
Prescribes effluent limitations and pretreatment and
performance standards, categorized by industries,
that must be complied with as conditions for NPDES
permit approval. Part 401 gives general provisions
and Part 403 covers general pretreatment regula-
tions for existing and new pollution sources. The
remaining parts are industry-specific. Of particular
interest to the USGS are:
40 CFR Part 434—Coal Mining Point Source
Category
40 CFR Part 435—Offshore Segment of the Oil and
Gas Extraction Point Source Category
40 CFR Part 436—Mineral Mining and Processing
Point Source Category
40 CFR Part 440—Ore Mining and Dressing Point
Source Category
• 518 DM 1—Comprehensive Waste Management,
Department of the Interior
This chapter defines waste to include solid and haz-
ardous waste, hazardous materials, and hazardous
substances. Departmental policies, responsibilities,
and functions regarding waste management are pre-
sented, with an aim towards prevention of hazardous
waste generation. The use of sound waste manage-
ment practices is mandated.
SAFE DRINKING WATER ACT (PL 93–523; 42 U.S.C.
300F—J-10)
Purpose
In 1974, the Safe Drinking Water Act (SDWA) was enacted
with the general intent to protect the quality of drinking
water the public receives from public water systems. To
accomplish this, the SDWA focuses on two approaches.
The first is to assure the quality of drinking water
WATER QUALITY 667
coming from the tap. The other approach is to prevent
the contamination of groundwater that may be a source
for drinking water.
MAJOR PROVISIONS BY SECTION
§1412 (42 U.S.C. 300g-1)—National Drinking Water
Regulations
The EPA is required to promulgate national drinking
water regulations, known as Maximum Contaminant
Level Goals (MCLGs) and Maximum Contaminant Levels
(MCLs) for public water systems. These standards specify
minimum levels of drinking water quality and are to be
issued for any contaminant that is known or anticipated
to have any adverse effect on health.
§1413 (42 U.S.C. 300g-2)—State Primary Enforcement
Responsibility; Regulations; Notice of Hearing; Publication in
Federal Register; Applications
States are given the authorization to assume primary
enforcement of the Act.
§1415–1416 (42 U.S.C. 300g-4 &
5)—Variances—Exemptions
The conditions are offered in which states may issue
variances and exemptions.
§1417 (42 U.S.C. 300g-6)—Prohibition on Use of Lead
Pipes, Solder, or Flux
Any use of lead in pipes, solder, or flux in public
water systems where the water is intended for human
consumption is prohibited.
§1422 (42 U.S.C. 300h-1)—State Primary Enforcement
Responsibility
This section requires the establishment of state under-
ground injection control programs so as to protect current
and potential underground sources of drinking water from
contamination.
§1424 (42 U.S.C. 300h-3)—Interim Regulation of
Underground Injections
This declares that Federal agencies shall make no
commitment of Federal assistance to actions that will
contaminate an aquifer designated as the sole or principal
drinking-water source for an area which, if contaminated,
would create a significant hazard to the public health.
§1428 (42 U.S.C. 300h-7)—State Programs to Establish
Wellhead Protection Area
States are given the authority to develop wellhead
protection programs that address the kinds of activities
that might be conducted in proximity to wells, particularly
seeking to limit activities that might pose threats to the
well fields.
668 WATER QUALITY
§1431 (42 U.S.C. 300i)—Emergency Powers
If there is an imminent and substantial endangerment
to public health through drinking water, EPA is given
emergency powers to act against contamination.
§1445 (42 U.S.C. 300j-4)—Records and Inspection
The EPA is to promulgate regulations requiring drinking
water monitoring. This section also mandates that EPA
establish record keeping requirements.
§1448 (42 U.S.C. 300j-7)—Judicial Review
The D.C. Circuit is given the jurisdiction of judicial review
of national primary drinking water regulations. The U.C.
Courts of Appeal are given jurisdiction for any other EPA
action when the petitioner resides or transacts business in
that particular region.
§1449 (42 U.S.C. 300j-8)—Citizen’s Civil Action
This section gives citizens the right to file suit to enforce
any mandatory provisions of the SDWA.
Part F—Additional Requirements to Regulate
the Safety of Drinking Water
§1461–1465 (42 U.S.C. 300j-21 to 26)
These particular sections codify the Lead Contamination
Act of 1988. This requires that any lead-lined tanks of
drinking water coolers be recalled.
PERTINENT REGULATIONS
• 40 CFR Part 141—National Primary Drinking
Water Regulations, EPA
One of the most significant provisions of the
SDWA is the establishment of National Primary
Drinking Water Regulations. The regulations are
given life here, with the establishment of maximum
contaminant levels (MCLs) for inorganic and organic
constituents, Subpart B and maximum contaminant
level goals (MCLGs), Subpart F. Much attention is
given to the monitoring and analytical requirements
for the regulated water quality parameters, Subpart
C. Filtration and disinfection are given much the
same kind of thorough treatment. Also included
are sections covering control of lead and copper,
muse of non-centralized treatment devices and
treatment techniques.
• 40 CFR Part 142—National Primary Drinking
Water Regulations Implementation, EPA
With only a few exceptions, this part applies to
the public water system in each state. States are
given primary enforcement responsibility, given that
the state has an EPA-approved program. If a state
wishes to revise its program, it may do so if it follows
the requirements given in 142.12. All states with
enforcement responsibility are required to submit to
the EPA Administrator a report containing various
components dealing with national primary drinking
water regulations. Variances and exemptions to the
primary regulations may be granted by either the
states of the Administrator. Another section (142.60)
discusses best available technologies for a list of
contaminants as they pertain to national primary
drinking water regulations.
• 40 CFR Part 143—National Secondary Drink-
ing Water Regulations, EPA
While Part 141 of this title is concerned with
primary drinking water regulations, this part deals
with national secondary drinking water regulations.
Secondary regulations control contaminants that
primarily affect the aesthetic qualities of drinking
water. Levels are given for selected contaminants
and it is explained that states may establish higher
or lower levels depending on special conditions
with that state, given that public health and
welfare are not adversely affected. Section 143.4 gives
monitoring requirements, stating that monitoring
should occur no less frequently than the schedule
used for the National Interim Primary Drinking
Water Regulations.
• 40 CFR Part 144—Underground Injection Con-
trol Program, EPA
This regulation stems from Part C of the SDWA
which allows for the establishment of an Under-
ground Injection Control (UIC) program in each state.
General program requirements are given in Subpart
B. These requirements address prohibition of unau-
thorized injection, prohibition of movement of fluid
into underground sources of drinking water, prohi-
bition of Class IV wells and requirements for wells
injecting hazardous waste. In 144.16 of this sub-
part, direction is given for cases when injection does
not occur into, through, or above an underground
source of drinking water. Subpart C takes a look
at authorization of underground injection by rule
where each class of wells is given particular autho-
rization requirements. Authorization is also available
by permit, and this is the topic of Subpart D. Going
hand-in-hand with Subpart D is Subpart E, which
discusses permit conditions. Finally, in Subpart F,
financial responsibility for hazardous waste injection
wells is described.
• 40 CFR Part 146—Underground Injection Con-
trol Program: Criteria and Standards, EPA
By working closely with Part 144 of this title, this
part sets forth the technical criteria and standards
for the Underground Injection Control Programs.
Criteria are given for exempted aquifers, which
include aquifers used as an ‘‘underground source of
drinking water’’. Injection wells are then classified
as Class I–V, based on the material injected. The
following subparts (B–G) then outline, in detail, the
criteria for each class of injection wells.
• 40 CFR Part 149—Sole Source Aquifers, EPA
Pursuant to 1427 of the SDWA, this regulation was
written to provide criteria for identifying critical
aquifer protection areas. Section 149.3 refers to a
Critical Aquifer Protection Area as one which was
designated as a sole or principal source aquifer prior
to June 19, 1986 for which an area wide ground-water

quality protection plan was approved. The second
definition entails major recharge areas of a sole or
principal source aquifer designated before June 19,
1988. Edwards Underground Reservoir, of the San
Antonio area, is given attention in Subpart B.
• Environmental Statement Memorandum No.
ESM94-5—Environmental Impacts on Ground-
water, Department of Interior
Implements CEQ memorandum issued on November
19, 1976, concerning 1424(e) of the Safe Drinking
Water Act. EISs will analyze impacts on the quantity
and quality of ground water with specific emphasis on
drinking-water sources. For proposed actions which
may affect ground water, early consultation is to be
initiated with the appropriate District Hydrologist,
Water Resources Division (WRD). If it is possible that
the proposed action may affect an aquifer which has
been designated or is being petitioned for designation
for special protection, early consultation should be
initiated with the Regional EPA Administrator.
• 516 DM 2 Appendix 2 (2.2), Department
of Interior
Environmental documents (EA, EIS, FONSI) must be
prepared for actions which may adversely affect such
unique geographic characteristics as sole or principal
source drinking-water aquifers.
• 518 DM 1—Comprehensive Waste Management,
Department of the Interior
This chapter defines waste to include solid and haz-
ardous waste, hazardous materials, and hazardous
substances. Departmental policies, responsibilities,
and functions regarding waste management are pre-
sented, with an aim towards prevention of hazardous
waste generation. The use of sound waste manage-
ment practices is mandated.
DEFINITIONS
Best Management Practices (BMP)
Schedules of activities, prohibitions of practices, main-
tenance procedures, and other management practices to
prevent or reduce the pollution of ‘‘waters of the United
States’’. (40 CFR Part 122.2)
Contaminant
Any physical, chemical, biological, or radiological sub-
stance or matter in water.(SDWA, 1401(6))
Discharge of a Pollutant
Any addition of any pollutant to navigable waters from
any point source. (CWA, 502(12)(A))
Exemption
A document for water systems having technical and
financial difficulty meeting national primary drinking
water regulations effective for one year granted by EPA
‘‘due to compelling factors’’.
WATER QUALITY 669
Maximum Contaminant Level (MCL)
The maximum permissible level of a contaminant in water
which is delivered to any user of a public water system.
(SDWA, 1401(3))
Maximum Contaminant Level Goal (MCLG)
The level at which no known or anticipated adverse
effects on the health of persons occur and which allows
an adequate margin of safety.
National Pollutant Discharge Elimination System (NPDES)
The national program for issuing, modifying, revoking and
reissuing, terminating, monitoring and enforcing permits,
and imposing and enforcing pretreatment requirements,
under sections 307, 402, 318, and 405 of CWA. (40 CFR
Part 122.2)
Navigable Waters
Waters of the United States, including the territorial seas.
(CWA, 502(7))
Person
An individual, corporation, partnership, association, state,
municipality, commission, or political subdivision of a
State, or any interstate body. (CWA, 502(5))
Point Source
Any discernible, confined and discrete conveyance, includ-
ing but not limited to any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure, container, rolling stock,
concentrated animal feeding operation, or vessel, or other
floating craft, from which pollutants are or may be dis-
charged. This term does not include agricultural stormwa-
ter discharges and return flows from irrigated agriculture.
(CWA, 502(14))
Pollutant
Dredged spoil, solid waste, incinerator residue, filter
backwash, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive mate-
rials (except those regulated under the Atomic Energy
Act of 1954), heat, wrecked or discarded equipment, rock,
sand, cellar dirt and industrial, municipal, and agricul-
tural waste discharged into water. It does not mean:
(a) sewage from vessels; or (b) water, gas, or other mate-
rial which is injected into a well to facilitate production
of oil or gas, or water derived in association with oil and
gas production and disposed of in a well, if the well used
either to facilitate production or for disposal purposes is
approved by authority of the State in which the well is
located, and if the State determines that the injection or
disposal will not result in the degradation of ground or
surface water sources. (CWA, 502(6))
Public Water System
A system for the provision to the public of piped water for
human consumption, if such system has at least fifteen
670 WATER QUALITY
service connections or regularly serves at least twenty-five
individuals. (SDWA, 1401(4))
Publicly Owned Treatment Works (POTW)
Any device or system used in the treatment of municipal
sewage or industrial wastes of a liquid nature which
is owned by a ‘‘State’’ or ‘‘municipality’’. This definition
includes sewer, pipes, or other conveyances only if they
convey wastewater to a POTW providing treatment. (40
CFR Part 122.2)
Recharge Zone
The area through which water enters a sole or principal
source aquifer.
Significant Hazard to Public Health
Any level of contaminant which causes or may cause
the aquifer to exceed any maximum contaminant level
set forth in any promulgated National Primary Drinking
Water Standard at any point where the water may be used
for drinking purposes or which may otherwise adversely
affect the health of persons, or which may require a public
water system to install additional treatment to prevent
such adverse effect.
Sole or Principal Source Aquifer
An aquifer which supplies 50 percent or more of the
drinking water for an area.
Streamflow Source Zone
The upstream headwaters area which drains into an
aquifer recharge zone.
Toxic Pollutants
Those pollutants. . .which after discharge and upon
exposure, ingestion, inhalation or assimilation into any
organism. . .,will, on the basis of the information available
to the Administrator, cause death, disease, behavioral
abnormalities, cancer, genetic mutations, physiological
malfunctions or physical deformations, in such organisms
or their offspring. (CWA, 502(13))
Variance
A document for water systems having technical and
financial difficulty meeting national primary drinking
water regulations which postpones compliance when the
issuing of which ‘‘will not result in an unreasonable risk
to health’’.
Waters of the United States
a) all waters which are currently used, were used in the
past, or may be susceptible to use in interstate or foreign
commerce, including all waters which are subject to the
ebb and flow of the tide; b) all interstate waters, including
interstate ‘‘wetlands’’; c) all other waters such as interstate
lakes, rivers, streams. . ., mudflats, sandflats, ‘‘wetlands’’,
sloughs, prarie potholes, wet meadows, playa lakes, or
natural ponds the use, degradation, or destruction of which
would affect. . .interstate or foreign commerce. . .(40 CFR
Part 122.2)
Wetlands
Those areas that are inundated or saturated by surface
or groundwater at a frequency and duration sufficient
to support. . .a prevalence of vegetation typically adapted
for life in saturated soil conditions. Wetlands generally
include swamps, marshes, bogs, and similar areas. (40
CFR Part 122.2)
APPLICABLE ACTIONS
Clean Water Act
NPDES permits are required for the discharge of
pollutants from any point source into waters of the U.S.
[40 CFR 122.51(c)]
Section 404 permits are required for the discharge
of dredged or fill material into waters of the U.S. (33
CFR 323.3)
Safe Drinking Water Act
Any action which may result in degradation of groundwa-
ter quality and/or pose a hazard to public health.
SUMMARY OF IMPLEMENTATION PROCEDURES
Clean Water Act
The procedures for determination of potential water
quality impact from USGS activities and the need for
various permits are extremely complicated and require
close coordination with the Environmental Affairs Office,
USGS, with regional offices of the EPA and the Army
Corps of Engineers, and with state water pollution
control agencies.
Safe Drinking Water Act (Consult ESM 94-5 for details)
1. In all cases where a project may involve ground
water, one or more aquifers, or a recharge area,
consultation with the appropriate District Hydrol-
ogist, WRD, should be initiated early in the plan-
ning stages.
2. Where a project may have any possibility of direct or
indirect contamination of a sole or principal source
aquifer, a recharge zone for such an aquifer, or
a related streamflow source zone that has been
designated or for which a petition for designation
is being processed, early consultation should be
initiated with the Regional Administrator, EPA.
3. If a project-related ground water impact is possible,
an environmental assessment should be prepared.
If an EIS is to be prepared, a copy of the Notice
of Intent should be sent to the appropriate EPA
Regional Administrator and he/she should review
the draft EIS.
 INTERFACE BETWEEN FEDERAL WATER QUALITY REGULATION AND STATE ALLOCATION OF WATER QUANTITY
4. Final plans for projects having a potential for
adverse impacts should incorporate appropriate
mitigation measures.
INTERFACE BETWEEN FEDERAL WATER
QUALITY REGULATION AND STATE
ALLOCATION OF WATER QUANTITY
MELINDA R. KASSEN
Trout Unlimited, Colorado
Water Project
Boulder, Colorado
Healthy rivers and lakes require both clean and flowing
water. In the United States, however, there are two sepa-
rate and distinct systems for regulating water quality and
water allocation, i.e., the amount of water taken out of a
waterbody for beneficial use and, as a result, the amount of
water left in the waterbody for environmental, aesthetic,
or recreational purposes. States have the primary author-
ity to allocate quantities of water for various users. Thus,
state allocation decisions affect how much water flows in
rivers and streams. At the same time, federal law—the
Clean Water Act—regulates water quality, although the
Act gives the states certain responsibilities and allows
the Federal Government to delegate other responsibilities
to the states, albeit in both cases with federal oversight.
Because a river has aspects of both flow and quality; how-
ever, actions taken pursuant to either quality or quantity
regulation can affect regulatory actions in the other sys-
tem. Such instances of overlap create substantial friction
both between levels of government and between the gov-
ernments and those using or enjoying the nation’s waters.
WATER QUANTITY
The 50 states each have developed their own systems
of water allocation. However, the states in the western
half of the country generally follow the system of
prior appropriation, whereas the states in the wetter
eastern half generally follow the riparian system of water
allocation. Even federal agencies must procure their water
rights through the state allocation systems.
In the temperate east of the country, states follow the
riparian doctrine for water allocation. This common-law
doctrine, imported from England with the first European
settlers to North America, allows landowners bordering
a river to take what water they need for use on their
land—reasonable use—so long as such use does not
impair others’ use on the same river. Increasingly, riparian
states are refining their doctrines and adopted statutory
frameworks, including water use permits. Both common-
law riparianism and the statutory variants provide that
one owner’s use should not adversely affect the water
quality to the point where another riparian user cannot
make reasonable use of the river. If such a situation
develops, the injured riparian user can seek to enjoin the
offending action and/or compensation for damages.
West of the 100th Meridian where natural precipitation
is half or less than what is available further east (as well
671
as in Alaska and Hawaii), states follow the doctrine of
prior appropriation. Prior appropriation allows anyone to
divert water from a river for beneficial use in priority.
The priority system assigns water users seniority based
on when they first started using the water; the ‘‘first in
time, first in right’’ precept means that the most senior
appropriator gets to fulfill his or her entire right before the
next appropriator can take any water out of the stream.
Many western states do not have any public interest,
environmental, or other balancing tests that prevent
appropriators from drying up streams entirely. Although
most western states do have some type of ‘‘instream flow’’
protection programs, these programs were typically added
into the system within the past few decades and do not
disturb existing diversionary rights.
WATER QUALITY
Before 1965, states had exclusive authority to regulate
water quality except to the extent that the U.S. Army
Corps of Engineers may have affected water quality
through its regulation of navigable waters under the
1899 Rivers and Harbor Act. Even the 1965 federal
legislation did not create federal legislative authority. So,
it was not until 1972 that Congress passed the Federal
Water Pollution Control Act, which, for the first time,
created a federal floor for water quality protection and
two mandatory permit programs. The goals of the Act
were no less than to ‘‘restore and maintain the chemical,
physical and biological integrity of the Nation’s waters’’
and eliminate all discharges of pollutants into the nation’s
waters by 1985. [33 U.S.C. §1251 (2002)].
The Act, later amended and retitled the Clean Water
Act, retained the preexisting scheme, albeit substantially
strengthened, for states to adopt their own water quality
standards—composed of the uses and chemical quality for
all their water bodies—however, now subject to approval
by the federal Environmental Protection Agency (EPA).
In addition, federal agencies, or delegated state agencies,
issued discharge permits to ensure compliance with the
water quality standards. Finally, where a waterbody does
not meet the water quality standards that the state has
adopted for it, the Clean Water Act requires the state
to list this waterbody as impaired and then to estab-
lish a ‘‘Total Maximum Daily Load’’ (TMDL) of pollutants
that, once achieved, will result in the waterbody meet-
ing its standards. This latter program is similar to the
standards-setting program in that the states have pri-
mary authority for listing and setting TMDLs, but the
EPA must ultimately approve the state’s actions, and if
the state’s actions are insufficient to meet federal law,
then EPA establishes the TMDLs.
The Clean Water Act creates two different permitting
programs. The first, the National Pollutant Discharge
Elimination System (NPDES), requires entities, including
many industries but also municipal wastewater treatment
facilities, discharging pollutants to a waterbody through a
discrete conveyance or point source, often a pipe, to obtain
a permit. This permit imposes ‘‘end of the pipe’’ effluent
limits to ensure compliance with two distinct sets of
requirements—the state-adopted water quality standards
672 INTERFACE BETWEEN FEDERAL WATER QUALITY REGULATION AND STATE ALLOCATION OF WATER QUANTITY
for the receiving water and a federally determined set of
best-available technologies, established on an industry-
by-industry basis. The second permit program regulates
those who discharge dredged or fill material into waters of
the United States, including wetlands tributary to rivers,
lakes, and estuaries. Such permits must again protect the
receiving water’s water quality standards and must ensure
that the discharge of dredged or fill materials does not
have an ‘‘unacceptable adverse effect’’ on either municipal
water supplies or the environment. Although Congress
gave federal agencies the initial authority to administer
both permit programs, the Act also encouraged states to
seek delegation of the programs. Most states administer
their own NPDES permit programs, rather than the EPA;
only a handful of states have chosen to seek delegation
of the permit program for dredged and fill materials from
the U.S. Army Corps of Engineers. With regard to both
types of permits, states must certify that the discharge, as
ultimately regulated, will meet the state’s water quality
standards. In fact, states must certify compliance with
water quality standards for all federal permits that affect
water quality, even those not issued pursuant to the Clean
Water Act, for example, hydropower licenses that the
Federal Energy Regulatory Commission issues.
The Clean Water Act creates many additional programs
and includes significant sources of federal funding to
enable the states to meet their regulatory responsibility,
and to enable municipalities to achieve the necessary
levels of sewage treatment. In addition, 30 years after
passage of the Act, most waters that remain impaired
are so as a result of ‘‘non-point sources’’ of pollutants, for
which the Clean Water Act does not require permits. These
sources include runoff from farms, construction sites, and
abandoned mines. Although the Clean Water Act did not
mandate controls for these sources of contamination, it
includes programs to encourage their voluntary cleanup.
INTEGRATION
In water rights adjudications and permit proceedings,
in most western states, the decision maker has only
a limited ability to consider water quality. At one
extreme, California has fully integrated water quality
protection into water rights decisions, such that the
state agency responsible for granting water rights has
in a few instances required a diverter to leave water
instream for water quality protection. In addition, since
1983, California implements its common-law public trust
doctrine to require water quality protection in the context
of water diversions. Thus, the California Supreme Court
found that the California Water Resources Board had an
affirmative duty to protect Mono Lake’s water quality and
environment from adverse effects caused by diversions by
the City of Los Angeles, although the court still recognized
a need to balance water rights with environmental
protection and did not limit existing diversions [National
Audubon Society v. Superior Court, 658 P.2d 709 (Cal.
1983)]. Other states such as Colorado and Idaho have
explicitly rejected this approach, whereas still others, e.g.,
Oklahoma and Nebraska, simply have not articulated a
position in the decades since the Mono Lake ruling.
In fact, in most other states, the water quality protec-
tions embedded in water rights and permit proceedings are
limited. Only 7 of the 17 western states have either statu-
tory or public interest requirements to protect a senior
diverter’s water quality from injury as a result of changes
to existing water rights.
Most states require a new diverter to protect water
quality at least to the point that the quality is sufficient
for a senior diverter’s purposes. However, in Colorado, a
senior water user cannot seek protection from a lessening
of water quality because of new diversions, or changes to
existing diversions, although that user is entitled to have
water quality maintained when there is an exchange of
water on the river, i.e., when the senior is receiving water
from a different source because of changes elsewhere in
the system. Thus, senior diverters on the Arkansas River
were denied relief as a result of a change to water rights
that resulted in water formerly used for irrigation on the
plains being diverted in the headwaters out of the basin
entirely, even though the change substantially reduced
the water quality of the flows remaining the basin.
Although 1970s era slogan proclaimed that, ‘‘Dilution
is not the solution to pollution,’’ entities discharging
pollutants to a stream pursuant to a Clean Water Act
permit have also sought protection from changes to water
rights that would remove dilution flows. In Colorado, at
least, this effort has not been successful. Thus, the courts
denied relief to a discharging industry that objected to a
change of water rights that would have removed stream
flow such that the discharger would have faced significant
additional water treatment costs to be able to meet its
permit limits. The court remarked on the subservient
nature of water quality regulation to the water rights
allocation system, which did not allow consideration of
water quality, or injury to a discharger, as opposed to
another water user, in determining whether to grant a
water right [City of Thornton v. Bijou Irrigation Co., 926
P.2d 1, 90–94 (Colo. 1996)].
On the water quality front, even as it adopted a federal
regulatory scheme for water quality protection, Congress
was mindful of the states’ role in water allocation. Thus,
the 1972 law includes a section that its provisions not
‘‘be construed as impairing or in any manner affecting
any right or jurisdiction of the States with respect to the
waters . . . of such States’’ [33 U.S.C. §1370(2) (2002)]. Yet,
by 1977, after 5 years of Clean Water Act implementation,
some western water user interests had become alarmed
as to the potential for Clean Water Act regulation to
‘‘interfere’’ with the exercise of water rights. Congress
added an additional provision to the Act, as part of a
broad package of amendments, that no regulatory actions
it authorized should ‘‘supercede, abrogate or impair’’ the
exercise of state water rights [33 U.S.C. §1251(g)(2002)].
However, for several reasons, including that this language
is a goal and that legitimate water quality regulation may
affect water rights, the Courts have upheld water quality
regulation to occur that appears at least to affect individual
water users. For example, a farmer could not discharge
 INTERFACE BETWEEN FEDERAL WATER QUALITY REGULATION AND STATE ALLOCATION OF WATER QUANTITY
dredged and fill material without a permit, even though
he was doing so to better use his water rights [United
States v. Akers, 785 F.2d 814 (9th Cir. 1986)]. And, a
state could impose conditions in a water certification for a
federal permit that had the effect of limiting the amount
of water the permittee could use [PUD No. 1 of Jefferson
County v. Wash. Dep’t of Ecology, 114 S.Ct. 1900 (1994);
see also Public Util. Dist. No.1 of Pend Oreille County
v. Wash. Dep’t of Ecology, 51 P.3d 744 (Wash. 2002)].
Finally, an entity seeking to build a new dam must obtain
a Clean Water Act dredge and fill permit even if that entity
already has a state water right to build the dam [Riverside
Irrigation Dist. v. Andrews, 758 F.2d 508 (10th Cir. 1985)].
In making these findings, the courts repeatedly have held
that legitimate regulation under the Clean Water Act may
proceed even if there are indirect effects on the exercise of
a water right.
In contrast to the courts’ rulings, state legislatures
have often taken action expressly to exempt water
rights holders from regulation under state Clean Water
Act programs. Thus, Colorado adopted the federal Act’s
language regarding not to ‘‘supercede, abrogate or impair,’’
but not in the goals section of the Act; rather the
provision is part of the state Water Quality Control
Act’s implementation [Colo. Rev. Stat. §25-8-104 (2004)].
Similarly, after the U.S. and state Supreme Court rulings
in Washington confirming the state water quality agency
authority to impose minimum stream flows that might
affect the yield of water rights through water quality
certifications, the state legislature adopted statutory
amendments forbidding the state agency from adversely
affecting water rights in water quality regulation [Wash.
Rev. Code §90-48-422 (2004)].
A recent set of cases that illustrate the potential
tension between water quality regulation and state water
allocation laws involve artificial transfers of water, i.e., the
man-induced movement of water from one waterbody to
another. In each case, an entity was moving water from a
contaminated watershed to a relatively cleaner waterbody
through a conveyance—via a snowmaking system at a
ski area, a municipal drinking water collection system,
and a flood control system. Three U.S. courts of Appeal
ruled that the discharger had to obtain an NPDES permit,
because there was a discharge of pollutants from a point
source to waters of the United States. The U.S. Supreme
Court considered one of these cases in 2004 but did not
reach the ultimate issue, although the Court did hold that
the transferring water from one distinct water to another
through a pipe did constitute a point source subject to
permitting, even though the discharger was not, itself,
‘‘adding’’ pollutants to the water being transported [South
Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians,
124 S.Ct. 1537, 1543 (2004)]. In other words, it was enough
that the water being discharged was polluted already and
was being discharged to a cleaner system.
As all three of the cases developed east of the
Mississippi, the dischargers did not argue that they had
water rights that allowed them to operate their systems
free from Clean Water Act regulation, but many western
states and water users weighed in to make that point. In
673
fact, diverters have argued that requiring all transbasin
diversions of water to operate only under an NPDES
permit would overwhelm the states’ permitting systems
and adversely affect the use of state water rights. Those
in support of requiring such permits have suggested
that many of these diversions with discharges could be
accomplished under states’ general permitting programs
in a way that would not be onerous. Only one state,
Pennsylvania, has historically required permits for these
kinds of discharges.
There are other places in the Clean Water Act
program where water rights issues collide with water
quality regulation. The Clean Water Act requires states
to establish water quality standards, including use
designations and numeric or narrative criteria for
individual pollutants (33 U.S.C. §1313). To the extent
that the exercise of water rights has affected what uses a
waterbody can attain, because of the loss of dilution flow
or fundamental changes in the natural system because of
a dam, diversion, or artificial increase in the quantity of
water coursing through the channel, states wrestle with
how to accommodate human activity while encouraging
operations that will maintain the Clean Water Act’s
‘‘fishable/swimmable’’ goal for water quality.
In the program that requires states to list waters that
remain impaired after all permitted discharges have per-
mits [33 U.S.C. 1313(d)] EPA has interpreted the Clean
Water Act not to require listing for impairment because
of pollution, the definition of which includes hydrologic
modifications such as dams and diversions that allow par-
ties to exercise their water rights [64 Fed. Reg. 46011
(August 23, 1999); 65 Fed. Reg. 43586, 43592 (July 13,
2000)]. The problem is that the exercise of water rights
that result in changes to the flow regime can lead both
to impairment and to certain pollutant levels above the
adopted standards. Examples include excessive temper-
atures, sediment, and nutrient levels. As temperature,
sediment, and nutrients are pollutants, there have been
listings, for example, in the Yakima River Basin in Wash-
ington State, where the underlying issue is most likely a
change in the flow regime as a result of the exercise of
water rights. So as not to challenge the exercise of water
rights, other states, including California, New Mexico, and
Washington, try to solve high temperatures with require-
ments to plant shade trees along a river’s banks. See, e.g.,
http://www.ecy.wa.gov/programs/wq/tmdl/-watershed/
index.html. However, EPA has rejected state proposals
to solve impairment with flow enhancement programs. See
http://www.-deq.state.mt.us/wqinfo/TMDL/approvalLtrs/
Approval BigCreekYelBasin.pdf.
Thus, state resistance to integrating water quality
regulation, a federal mandate, with state water allocation
systems has hampered protection of the environment
as well as protection of the water quality necessary to
sustain competing water uses. However, fears regarding
the costs associated with water users having to protect
the environment have kept most state legislatures from
adopting statutes that integrate water quality protection
into their water allocation systems in a way that would
impose additional burdens on water development.
674 REGULATORY ISSUES AND REMEDIATION: RISK, COSTS, AND BENEFITS
REGULATORY ISSUES AND REMEDIATION:
RISK, COSTS, AND BENEFITS
DAVID B. VANCE
ARCADIS
Midland, Texas
JAMES A. JACOBS
Environmental Bio-Systems,
Inc.
Mill Valley, California
Major regulatory changes have occurred over the past
decade regarding enforcement and cleanup standards.
These changes have occurred in part, because of the
realization that enormous financial and human resources
were being spent on the remediation of properties with
low concentrations of residual fuel hydrocarbon (primarily
gasoline and diesel) contamination with low impact
to human receptors. A major report from a national
laboratory in 1995 changed the regulatory approach to
focus attention on the risk benefits and exposure pathways
associated with subsurface fuel contamination. Risked
based decision making takes into account the risk, costs,
and benefits when evaluating regulatory approaches to
remediation
INTRODUCTION
A Lawerence Livermore National Laboratory (LLNL)
report (1) found that once fuel leak sources have been
removed, petroleum hydrocarbon contamination generally
does not spread far from the leak sites. Given time,
naturally occurring indigenous microbes in the soil and
water usually break down most of the contamination
before drinking water sources are impacted. The report
noted that only 136 sites of the 28,051 evaluated (<0.5 of
1%) affected drinking water supply wells. The LLNL study
concluded that at many low-risk sites, active cleanup could
be stopped and natural attenuation by naturally occurring
biological and geochemical methods would reduce the
contamination over time (1).
The LLNL study was important at the time. About
1200 out of 20,000 leaking underground fuel sites were
examined in detail. It appeared that in most cases,
the length of the hydrocarbon plumes was limited to
several hundred feet and less than 50 feet vertically.
Natural bioattenuation, abiotic degradation, and diffusion
processes stabilized or attenuated these plumes over
time (2). LLNL concluded that the threat to human
health and long-term effects on the environment caused
by petroleum hydrocarbon contamination may have been
vastly overestimated. Water supplies can generally be
purchased for about $50 to $200 per acre foot, or even
$1000 per acre foot at the most expensive price. Cleanups
of petroleum contamination of groundwater were costing
up to $600,000 per acre feet to reclaim groundwater and
to meet cleanup goals (2).
Critics to the LLNL report noted that LLNL had
huge environmental cleanups to contend with, so their
recommendations may have been politically motivated,
none of the actual data discussed in the LLNL report
were included in the report for examination, the report
relies on written and verbal communications and papers
supplied by the petroleum industry, and no public health
professionals from CAL EPA, the Department of Health
Services (DHS), or other agencies were solicited for their
recommendations or review (3).
Even with the controversy, the LLNL report did focus
public policy discussion on how clean is clean and what
financial and human resources are worth using to clean
up hydrocarbon contamination. These discussions led to
consideration of risked based cleanup standards.
Changing from enforcement driven by arbitrary
cleanup standards to action (or no action) driven by health-
based risk assessments in conjunction with a cost/benefit
analysis. The current debate includes the application of
this concept at the highest level for the promulgation of
new regulations or modification of existing regulations.
However, the more powerful application of the new reg-
ulatory paradigm is on a site-specific basis. The purpose
of risked based regulatory decision making is to exam-
ine the components of the site-specific risk/benefit/cost
process. The following discussion is predicated on two
basic assumptions: First, if a release of contaminants has
occurred at a site, the source of that release will be abated.
Second, free product hydrocarbons are not allowed to
remain on or near the water table.
These actions quickly limit the potential size of
a contaminant plume, minimize further migration of
the core of that plume, and recover contaminants as
free product versus dissolved phase. All of which offer
significant cost savings in the remediation effort. A health-
based risk assessment determines what concentration of
contaminant represents an acceptable risk level. The cost
side of the process is driven by the effort required to
achieve that risk-determined contaminant concentration.
Health-based risk assessment can be a complex process.
However, it has two key technical components: first, is the
dose/response relationship of a chemical and second, is the
pathway through which that chemical can ultimately enter
a human body. A third nontechnical issue is how accepting
the public is of the process, particularly those exposed to
the risk. Dose/response relationships are categorized into
two broad areas: noncarcinogenic and carcinogenic.
Noncarcinogenic responses are generally characterized
by a threshold dose. The threshold represents a level
of exposure to a contaminant that can be tolerated by
a person with no adverse effects until the protective
mechanisms of the person are overwhelmed. As individual
levels of tolerance vary, threshold determination can be
controversial.
Carcinogenic responses are assumed to have no
threshold. This assumption means that some finite cancer
risk exists no matter how small the dose.
The primary routes of exposure to groundwater
are ingestion, inhalation of vapors during bathing or
showering, and dermal exposure during bathing or
showering. Direct ingestion is straightforward, and
inhalation and dermal adsorption are dependent on
 REGULATORY ISSUES AND REMEDIATION: RISK, COSTS, AND BENEFITS
physical properties of the contaminant such as vapor
pressure and partition coefficients.
The public perception of risk is contradictory. Sig-
nificant risk to which a person will voluntarily expose
themselves, such as driving, improper diet, or smoking
are of concern, but deemed acceptable. In contrast, much
smaller risks associated with environmental impairment
that is imposed, and not voluntarily engaged, often gen-
erate alarm at any level above zero risk. This issue can
only be resolved by education to each person’s aggregate
risk during their lifetime from many sources with a view
toward the benefits each receives from our industrial soci-
ety. This should be an important part of the current risk
versus cost and benefit debate.
In a practical sense, the most effective method of
controlling the risk from contaminated groundwater is
simply to not use it, which in many situations may be
the most viable alternative. However, our groundwater
resources are finite and are diminishing in quality with
time. One solution that is likely to become more common is
surface treatment to remove contaminants. The most cost-
effective goals are to maintain as much of our groundwater
as possible in pristine condition and the timely restoration
of contaminated aquifers to acceptable conditions.
Cost effectiveness enters from establishing a health-
based contaminant concentration that is considered
acceptable and expending the minimum effort sufficient
to ensure that level is maintained. Whenever possible,
natural attenuation should be used for the final clean up
of the core and the dilute distal portions of the plume.
Groundwater recovery or in situ treatment should be
designed with three goals in mind:
1. Control and treat the core of the plume in which the
dissolved concentrations exceed the capacity of the
aquifer to naturally attenuate in a timely fashion.
2. If required, recover groundwater at a rate just
sufficient to achieve the above goal.
3. Design a system that takes into account the
heterogeneity of the aquifer matrix.
A fine-grained matrix will in general take a significant
amount of time to remediate because the overall mass
transport rates the matrix will support are low and
the amount of adsorbed contaminant is high. However,
groundwater recovery rates or in situ remediation systems
need only be sufficient to meet the low mass transfer
requirements. On the other hand, the migration distances
are likely to be minimal.
The worst case exists in aquifers that contain strata
of fine-grained material mixed with highly permeable
continuous layers. Pumping rates must be high to obtain
hydraulic control, but treatment durations are extended
because of the slow leaching of adsorbed contaminants
from fine-grained material. In aquifers of this type with
pronounced hydraulic gradients and subsequent high
groundwater flow rates, it may be necessary to allow much
of the contamination to spread through the aquifer such
that concentrations will be at levels amenable to natural
attenuation. A health-based risk assessment will be key in
this scenario, which in essence uses an extensive portion
675
of the aquifer matrix as a chemical/biological reactor for
contaminant destruction.
For permeable heterogenetic aquifers with small
hydraulic gradients and low groundwater flow rates, it
will be more economical to run a groundwater recovery
system or an in situ treatment system for short durations
on a periodic basis. The core of the process is the diffusion of
contaminants from fine-grained units into the more highly
permeable portions of the aquifer. This contaminated
pore volume is then treated to restore the contaminant
concentrations to low levels providing a concentration
gradient that drives the diffusion process. Initial capital
costs must be met, but operation and maintenance costs
will be significantly decreased over the life of the project.
If natural attenuation processes stop on a site because
of a lack of a suitable electron acceptor, such as oxygen
for aerobic bioremediation, other methods are available to
enhance site conditions and to continue with the natural
attenuation approach. The consumption of any available
oxygen within the core of a hydrocarbon plume is quite
common. In these cases, even the nitrate and sulfate
concentrations may be low within the core of the plume
because of the microbial consumption of these alternative
electron acceptors. For these projects that are too high in
concentration to close, but too low for active and aggres-
sive remediation methods, enhanced bioremediation holds
promise of lowering concentrations to regulatory accept-
able levels, wherein natural attenuation can be used. More
detailed information about natural and enhanced bioreme-
diation methods can be found in Suthersan (4).
Risk-based decision making and natural attenuation
has undergone changes over the past several years. Risk-
based corrective action (RBCA) is a U.S. Environmental
Protection Agency (EPA) cleanup process designed to
protect human health and the environment while allowing
for practical and cost-effective site-specific remedial
measures. RBCA has an expanded use of natural
attenuation as a cleanup option.
Some regulatory agencies are moving toward the
use of risk-based screening levels and decision making.
This approach uses lookup tables of conservative, risk-
based screening levels (RBSLs) for over 100 chemicals
commonly found in impacted soil and groundwater
at sites where releases of hazardous substances have
occurred. The approach is intended to help expedite the
preparation of environmental risk assessments at sites
where impacted soil and groundwater has been identified.
As an alternative to preparing a formal risk assessment,
soil and groundwater data collected at a site can be directly
compared with the RBSLs and the need for additional
work can be evaluated. It is anticipated that documents
like these will be especially beneficial for use at small-
to medium-sized sites, where the preparation of a more
formal risk assessment may not be warranted or feasible
because of time and cost constraints (5).
This new regulatory approach will rationalize the pro-
cess of environmental restoration. Regulators, industry,
and the public will benefit. For it to succeed, we all must
understand and accept reasonable levels of risk. Cost effec-
tiveness will hinge on the understanding and exploitation
of site-specific aquifer characteristics, and acceptance of
676 THE SAFE DRINKING WATER ACT
cleanup time frames that allow for the use of natural
attenuation.
BIBLIOGRAPHY
1. Rice, D.W., Gose, R.D., Michaelsen, J.C., Dooher, B.P., Mac-
Queen, D.H., Cullen, S.J., Kastenberg, W.E., Everett, L.G.,
and Marino, M.A. (1995). California Leaking Underground
Fuel Tank (LUFT) Historical Case Analyses. Submitted to the
California State Water Resources Control Board, Underground
Storage Tank Program and the Senate Bill 1764 Leaking
Underground Fuel Tank Advisory Committee. Livermore, CA,
November 16.
2. Weiss, R.B. (1996). State Regulatory Policy Takes A Giant Step
to Close Low Risk Sites. California Environmental Business
Council News.
3. Elliott, J. (1995). State Loosens Gasoline Spill Cleanup Rules.
Albion Monitor. December 21.
4. Suthersan, S. (2002). Natural and Enhanced Remediation
Systems. CRC Press, Boca Raton, FL.
5. Brewer, R. (2003). Screening For Environmental Concerns at
Sites With Contaminated Soil and Groundwater; regional
Water Quality Control Board. San Francisco Region. Cali-
fornia. Available: http://www.swrcb.ca.gov/rwqcb2/esl.htm.
THE SAFE DRINKING WATER ACT
ROLF R. VON OPPENFELD
The TESTLaw Practice Group
Phoenix, Arizona
OVERVIEW OF THE SAFE DRINKING WATER ACT
The Safe Drinking Water Act (SDWA) was enacted in 1974
and subsequently amended in 1986 and 1996 to protect
the public from risks posed by drinking water contam-
ination. The Act required the Environmental Protection
Agency (EPA) to establish standards or treatment tech-
niques for contaminants that could adversely affect human
health, establish requirements for monitoring the quality
of drinking water supplies and for ensuring the proper
operation and maintenance of water systems, and pro-
tect groundwater from subsurface injection of polluting
liquids. EPA posted a general guide to the SDWA provi-
sions at http://www.epa.gov/OGWDW/SDWAsumm.html
and posted its general approach for implementing the
provisions at http://www.OGWDW/sdwa/sdwa.html.
The 1996 Amendments are important because
Congress gave the EPA greater flexibility under
the SDWA and emphasized the cost/benefit analyt-
ical approach to regulation. For an overview of
the program, see the Office of Groundwater and
Drinkingwater at http://www.epa.gov/safewater.html. The
SDWA regulations can be found at 40 C.F.R. Parts
141–149 and may be accessed on the internet
at http://www.water.access.gpo.gov/nara/cfr or http://epa.
gov/OGWDW.regs. html. Inquiries about the regulations
can also be directed to the Safe Drinking Water Hotline at
1-800-426-4791.
The EPA has delegated primary compliance and
enforcement responsibility for the SDWA program to
qualifying states. A detailed description of state primacy
requirements can be found at http://www.epa.gov/safe
water/pws/primacy.html. If states fail to ensure proper
standards, the EPA may bring independent enforcement
against violators through the Act’s federal enforcement
procedures. With respect to the regulated community,
the SWDA focuses on operators of public water systems
(PWSs) and on persons engaged in underground injections
of fluids into wells.
Regulation of Public Water Systems
The SDWA regulates public water systems (PWSs) that
provide water for human consumption through pipes
or other constructed conveyances and regularly provide
service to more than 25 persons or have 15 or more service
connections [42 U.S.C. § 300f(4)(A)]. The EPA separates
PWSs into the following categories:
1. community water systems and
2. noncommunity water systems that may be either
a. nontransient, or
b. transient.
Community water systems (CWSs) supply at least
15 service connections used by year-round residents
or regularly serve at least 25 year-round residents
[42 U.S.C. § 300f(15)]. Of approximately 180,000 water
systems in the United States, only 55,000 are considered
CWSs. They range from large municipal systems that
serve millions of people to small systems that serve
fewer than 100 people. CWSs can be publicly owned
systems, including systems owned and operated by
municipalities, townships, counties, water districts, and
water authorities; privately owned systems that may be
owned and operated by groups ranging from investor-
owned water companies to homeowners associations; or
ancillary systems that provide water as an ancillary
function of their principal business or enterprise. Ancillary
systems primarily service mobile home parks and a variety
of institutional water providers.
Noncommunity PWSs are those systems that are
not community water systems [42 U.S.C. § 300f(16)].
Examples of noncommunity PWSs include small systems
in recreational areas and transient situations. Noncom-
munity systems may not have year-round residents but
would have at least 15 service connections used by trav-
elers or intermittent users for at least 60 days a year or
serve an average of 25 individuals for at least 60 days a
year. Specific examples of noncommunity systems include
restaurants, campgrounds, motels, schools, and factories
with their own wells or other water supply.
Nontransient, noncommunity water systems (NTNCWS)
regularly serve at least 25 of the same people for 6 months
of the year (Id). Schools and factories that serve water to
25 or more of the same people for 6 or more months of
the year are nontransient, noncommunity water systems.
All remaining water systems are classified as transient
noncommunity systems (TNCWS). TNCWSs do not serve

the same people on a day-to-day basis. In fiscal year 2000,
there were more than 54,000 CWSs, more than 20,000
NTNCWS, and more than 93,000 TNCWS.
Certain PWSs are excluded from coverage and need
not comply with SDWA regulations (42 U.S.C. § 300g).
Excluded PWSs
1. consist only of distribution and storage facilities
(have no collection and treatment facilities);
2. obtain all their water from a regulated PWS (but are
not owned or operated by that PWS);
3. do not sell water; and
4. are not interstate carriers of passengers (Id).
This exclusion means that facilities such as hotels,
factories, schools, and other businesses are not subject to
SDWA regulation merely because they operate a storage
tank and act as conduits from a PWS to consumers.
However, the exclusion does not apply to private facilities
that maintain their own wells or water supply. The
EPA provides guidance for its definition of PWSs at
http://www.epa/gov/OGWDW/guide/define.html.
SDWA DRINKING WATER STANDARDS AND GOALS
The SDWA authorizes the EPA to set drinking water
standards called National Primary Drinking Water
Regulations (NPDWRs). The EPA’s NPDWRs are located
at 40 C.F.R. Parts 141 and 142. NPDWRs are designed
to protect consumers against the adverse effects caused
by contaminants in drinking water. The SDWA requires
that the EPA publish NPDWRs for contaminants that
may have an adverse affect on human health, occur, or are
likely to occur in PWSs at harmful levels and where the
health risk can be reduced by regulation.
The 1996 Amendments made dramatic changes in the
SDWA implementation process. Congress required the
EPA to consider the following criteria when setting future
drinking water standards and goals:
1. use of best available, peer-reviewed science [42
U.S.C. § 300g-1(b)(3)(A)(i)];
2. the assessment of health effects of populations at
greater risk [42 U.S.C. § 300g-1(b)(3)(C)(i)(V)];
3. a list of treatment technologies for small systems,
considering the quality of source water [42 U.S.C. §
300g-1(b)(4)(E)(ii)];
4. an assessment of the incremental costs and benefits
of each alternative MCL considered [42 U.S.C. §
300g-1(b)(3)(C)(i)(IV)].
Maximum Contaminant Levels (MCLs)
A NPDWR must specify either a maximum contaminant
level (MCL) or a treatment technique [42 U.S.C. §§ 300f(1),
300g-1(a)(3)]. The EPA is authorized to promulgate a
NPDWR ‘‘that requires the use of a treatment technique
in lieu of establishing a MCL,’’ if the EPA finds that ‘‘it
is not economically or technologically feasible to ascertain
the level of contaminant’’ [42 U.S.C. § 300f(1)(C)]. Two
THE SAFE DRINKING WATER ACT 677
significant NPDWRs that rely on treatment techniques
are the Surface Water Treatment Rule and the Lead and
Copper Rule.
MCLs are enforceable standards and represent the
maximum permissible level of a contaminant in water
delivered to any use of a PWS (40 CFR § 141.2). MCLs
must be set as close to the maximum containment
level goals as feasible. ‘‘Feasible’’ means using the best
technology, treatment techniques, or other means which
the administrator finds available after considering costs
[42 U.S.C. § 300g-1(b)(4)(D)]. There are limits, however, to
the use of cost considerations. First, the costs considered
must be limited to those likely to be incurred [42 U.S.C.
§ 300g-1(b)(3)(C)]. Second, no consideration of costs is
allowed to establish a MCL for ‘‘contaminants that are
disinfectants or disinfection byproducts, or to establish
a maximum contaminant level or treatment technique
requirement for controlling Cryptosporidium’’ [42 U.S.C. §
300g-1(b)(6)(C)].
Under certain conditions, MCLs may be set at a level
different from the feasible level. A variation is allowed
where the means employed to achieve the feasible level of
one contaminant would increase concentrations of other
contaminants that pose a threat to human health. A level
other than the feasible level may also be set when the
means of reaching the feasible level for one contaminant
interferes with the treatment processes necessary to
comply with other NPDWRs. In these situations, the
MCL or treatment process specified must ‘‘minimize the
overall risk of adverse health effects’’ [42 U.S.C. § 300g-
1(b)(5)(B)(i)].
The EPA must publish findings based on a scientific risk
assessment of the probable health benefits and probable
costs of each alternative MCL under consideration [42
U.S.C. § 300g-1(b)(3)(C)]. The published findings should
be based on all of the following:
1. The EPA must use the best available, peer-reviewed
science and studies.
2. Data must be collected by accepted methods.
3. Information on health effects must be presented
by the EPA in an objective, comprehensive, and
understandable manner.
4. Analysis for MCLs must show the quantifiable and
nonquantifiable health risk reduction benefits, costs,
and any increased health risk of compliance with
the MCL.
5. For treatment techniques, analysis must show the
health risk benefits and costs likely to result from
compliance and alternative treatment techniques.
6. Valid approaches for measuring benefits must
be identified.
If the EPA determines that the costs of a promulgated
MCL outweigh the benefits, the EPA may promulgate
a new MCL [42 U.S.C. § 300g-1(b)(6)]. The choice of
treatment technique is left to the PWS, but the EPA
must list available technology and methods to meet
the MCL [42 U.S.C. § 300g-1(b)(4)(E)]. In addition,
this list must include affordable methods for small
678 THE SAFE DRINKING WATER ACT
PWSs (Id). The EPA maintains a list of MCLs at
http://www.epa.gov/safewater/mcl.html.
Judicial Review of MCLs
Section 1448(a) of the SDWA provides for judicial review
of EPA’s MCLGs and MCLs [42 U.S.C. § 300j-7(a)]. Only
the U.S. Court of Appeals for the District of Columbia
may review MCL determinations. A petition for review
must be filed within 45 days, starting on the date of
the promulgation of the regulation, unless solely based
on grounds occurring after expiration of the 45-day
period. There is no judicial review of a regulation in any
enforcement proceeding (Id). Judicial review of MCLs is
conducted under a narrow standard of review. The Court
of Appeals will reverse only if an EPA action is arbitrary,
capricious, an abuse of discretion, or not in accordance
with the law. The EPA is given great deference because of
the level of technical expertise it uses to evaluate complex
scientific data.
The Drinking Water Contaminant Candidate List
In 1996, Congress set its most recent schedule for setting
standards for drinking water contaminants. See 42 U.S.C.
§ 300g-1(b)(1)(B). First, the EPA was required to publish
a list of contaminants that are not subject to any proposed
or promulgated NPDWR, that are known or anticipated to
occur in PWSs, and that may require regulation under the
SDWA. The EPA was required to publish a Drinking Water
Contaminant Candidate List (CCL) in February 1998 and
every 5 years thereafter. The list must be published only
after consultation with the scientific community and public
comment. Following publication of the list, the EPA must
determine which of the listed contaminants to regulate.
The determination must be completed every 5 years for at
least five listed contaminants.
Unregulated Contaminant Monitoring Regulations
The 1996 amendments also required EPA to develop
a program to monitor unregulated contaminants and
publish a list of monitored contaminants [42 U.S.C.
§ 300j-4(a)(2)]. In response, the EPA promulgated
the Unregulated Contaminant Monitoring Regulations
(UCMR) [64 Fed. Reg. 50556 (Sept. 17, 1999)]. The
UCMR works in conjunction with the CCL. The EPA
can use the data generated through the UCMR to
prioritize contaminants on the CCL and help determine
which contaminants to regulate. Several states may also
petition to have certain contaminants monitored under
the UCMR [42 U.S.C. § 300j-4(a)(2)(B)]. The UCMR
covers all CWS and NTNCWS that serve more than
10,000 customers. An additional, 800 systems serving
under 10,000 customers were randomly selected to test
for unregulated contaminants.
The UCMR created three lists of contaminants for
monitoring. Substances were placed on lists depending
on their known environmental occurrence and the ability
to test analytically for them. List 1, the ‘‘Assessment
Monitoring’’ list, contains those substances known to occur
in more than two states or more than 10 PWSs, and for
which monitoring methods were available. See 40 C.F.R.
§ 141.40 Table 1. EPA has little monitoring data for List
2, the ‘‘Screening Survey,’’ and List 3, the ‘‘Pre-Screen
Testing List.’’
Chemical Monitoring Reform (CMR)
To reduce unnecessary monitoring and reporting require-
ments, the 1996 Amendments contained a provision for
modifying NPDWR monitoring requirements. This CMR
provision streamlined drinking water monitoring require-
ments for 64 chemicals that may occur in the source water
of PWSs. For a system to qualify for alternative monitor-
ing, it must demonstrate that a contaminant is not present
in its water supply or if it is present, that it is reliably and
consistently below the MCL. If the contaminant is later
detected at or above the MCL, then the system must elim-
inate the contamination, or it must monitor as required
under the NPDWR.
Secondary Regulations
Section 1412(c) of the SDWA also authorizes the EPA
to promulgate National Secondary Drinking Water
Regulations (NSDWRs) [42 U.S.C. § 300g-1(c)]. A NSDWR
is ‘‘a regulation which applies to PWSs and which
specifies the maximum contaminant levels which, in the
judgment of the Administrator, are requisite to protect the
public welfare’’ [42 U.S.C. § 300f(2)]. The NSDWR ‘‘may
apply to any contaminant in drinking water which may
adversely affect the odor or appearance of such water
and consequently may cause a substantial number of
persons served by the PWSs providing such water to
discontinue its use, or which may otherwise adversely
affect the public welfare’’ (Id). NSDWRs are not federally
enforceable but offer additional guidance based on odor,
aesthetics, and appearance to water systems and states.
NSDWRs may vary according to geography and other
circumstances. To date, NSDWRs have been established
for several contaminants, including copper, fluoride, pH,
and total dissolved solids. These regulations are in 40
C.F.R. Part 143.
Consumer Information
A major objective of the SDWA is to increase communica-
tion between PWSs and their customers. Consequently,
Congress required an annual ‘‘Consumer Confidence
Report’’ for PWSs. EPA regulations require each CWS to
mail to each customer, at least once annually, a report on
the level of contaminants in the drinking water purveyed
by that system. These reports also indicate the source of
the water supplied to the consumer and notify customers
that a source water assessment is available.
VARIANCES AND EXEMPTIONS
General Variance
A state that has primacy over the SDWA may issue a
variance if it determines that a system cannot comply
with a MCL, despite application of the best available
technology (BAT). The EPA determines the BAT and
treatment method for each NPDWR after examination

for efficacy under field conditions, rather than solely
under laboratory conditions, and after considering cost.
(40 C.F.R. § 141.2). A state may not issue a variance
where an unreasonable risk to health exists or where
alternative sources of water are reasonably available to
the system. Under Section 1415, EPA must propose and
promulgate its BAT finding at the same time it proposes
and promulgates a MCL for each contaminant (42 U.S.C. §
300g-4). BATs may vary among systems, depending upon
the number of persons served by the system or for other
physical conditions related to engineering feasibility and
costs of complying with MCLs.
The 1996 amendments allow the EPA to review and
object to any variance granted by a state [42 U.S.C. § 300g-
4(e)(10)]. If the state does not resolve these objections, the
EPA may overturn the variance when it violates SDWA
requirements. Consumers served by a PWS that has been
granted a variance may petition EPA to begin the objection
and review process.
A variance will be granted for a maximum of 5
years with the possibility of a 3-year extension. At the
time a variance is granted, it will contain a schedule
of steps necessary to achieve ultimate compliance with
the particular NPDWR applicable in the variance. The
variance may also contain additional control measures
for protecting public health during the period that the
variance is in effect. The EPA’s final rule, issued in August
1998, states that 5 years is a reasonable time frame for a
PWS to come into compliance; however, the state has the
flexibility to set a feasible schedule if it determines that
more than 5 years are required [63 Fed. Reg. 43841 (Aug.
14, 1998)].
Small System Variance
Congress responded to concerns that NPDWR compliance
costs unfairly burden small PWSs. The 1996 Amendments
added a special variance applicable only to small systems.
See 42 U.S.C. § 300g-4(e). A small system variance may be
available to systems that serve fewer than 3,300 persons
(or up to 10,000 with special EPA approval). The variance
should be of special interest to small community systems
as well as the schools, factories, and other institutions that
qualify as noncommunity water systems under the Act.
The small system variance is available only where EPA
has identified a less expensive version of the best available
technology, called ‘‘variance technology,’’ and the water
system cannot afford to comply with the regular NPDWR.
All variances must continue to provide adequate protection
of human health. The proposed maximum period for a
small system variance is 3 years with the possibility
of a 2-year extension to complete improvements, obtain
an alternate water source, or obtain federal or state
financial assistance.
Exemptions
Under Section 1416(a), a state may exempt a PWS
from any MCL or treatment technique requirement if
it finds that
1. due to compelling factors (which may include
economic factors), the system is unable to comply;
THE SAFE DRINKING WATER ACT 679
2. the system was in operation on the effective date of
the MCL or treatment technique, or, for a newer
system, that no reasonable alternative source of
drinking water is available to that system;
3. the exemption will not result in an unreasonable
risk to health; and
4. restructuring and management changes cannot
reasonably be made that will result in compliance
or otherwise improve the quality of the water (42
U.S.C. § 300g-5).
Under section 1418(b), a state is to prescribe a compliance
schedule and a schedule for implementing any required
interim control measures at the same time it grants an
exemption [42 U.S.C. § 300g-7(b)].
In a major change in the exemption provisions, the
1996 Amendments deleted provisions which limited an
exemption to 12 months, subject to a 3-year extension
[42 U.S.C. § 300g-5(b)(2)(A)]. The new provisions require
that the schedule for an exemption include compliance
with each contaminant level and treatment technique for
which the exemption was granted, as soon as practicable,
but not later than 3 years after the otherwise applicable
compliance date. The only exception to this time period is
for small systems that serve less than 3300 persons, under
certain specified conditions, for which extensions may be
renewed for one or more additional 2-year periods, but not
to exceed a total of 6 years [42 U.S.C. § 300g-5(b)(2)(C)].
The amendments now require that the state also con-
sider whether the PWS is a ‘‘disadvantaged community’’
and whether management or restructuring changes can be
made that will result in compliance or, if compliance can-
not be achieved, would improve the quality of the drinking
water [42 U.S.C. § 300g-5(b)(4)]. Measures to develop an
alternative source of water supply must also be considered.
The 1996 Amendments also gave states more flexibility
to adopt alternative protective strategies. For example, a
state exercising primary enforcement responsibility for a
PWS may, case-by-case and after notice and opportunity
for public comment, establish watershed management
programs as an alternative to filtration for systems that
have uninhabited, undeveloped watersheds. See 42 U.S.C.
§ 300g-1(b)(7)(C)(v).
UNDERGROUND INJECTION CONTROL (UIC) UNDER
THE SDWA
Scope of the UIC Program
SDWA established the UIC program to protect existing
and future underground sources of drinking water from
contamination caused by the subsurface disposal of waste
fluids into wells. See 42 U.S.C. §§ 300h-300h-5. Improper
operation of an injection well that allows movement of
contaminants into an underground source of drinking
water can lead to substantial civil penalties. The SDWA
allows states to administer their own UIC programs if the
state regulations and statutes meet the EPA’s minimum
requirements specified in 40 C.F.R. Parts 144–146. See
http://www.epa.gov/safewater/states.html.
680 REPRESENTING GEOPOLITICS OF (HYDRO) BORDERS IN SOUTH ASIA
The overriding standard applicable to all underground
injection activities is that
No owner or operator shall construct, operate, maintain,
convert, plug, abandon, or conduct any other injection activity
in a manner that allows the movement of fluid containing any
contaminant into underground sources of drinking water, if
the presence of that contaminant may cause a violation of any
primary drinking water regulation under 40 C.F.R. Part 142
or may otherwise adversely affect the health of persons . . . [40
C.F.R. § 144.12(a)].
Underground injection is defined as well injection, or
the subsurface emplacement of fluids through a bored,
drilled or driven well, or through a dug well where the
depth of the dug well is greater than the largest surface
dimension’’ (40 C.F.R. § 144.3). Fluid is broadly defined as
‘‘any material or substance which flows or moves whether
in a semisolid, liquid, sludge, gas, or any other former
state’’ (Id).
EPA has defined five classes of underground injec-
tion systems:
Class I: Wells injecting hazardous or nonhazardous
waste below the lower most underground source of
drinking water
Class II: Wells injecting fluids associated with oil and
gas production
Class III: Wells injecting fluids for mineral extraction
Class IV: Wells injecting hazardous waste into or above
an underground source of drinking water
Class V: All injection wells not covered by Classes I–IV
(40 C.F.R. § 144.6).
All Class IV wells are banned by SDWA (40 C.F.R.
§ 144.13). Class V wells are ‘‘authorized by rule,’’ and
no individual permit is required. There are currently
few regulatory requirements for Class V wells other
than reporting under 40 C.F.R. § 144.26. Class V wells
are the systems most commonly used by industry and
small commercial operations. Common Class V wells
include air conditioning return flow wells, cesspools,
and cooling water return flow wells. See EPA’s Class V
websites at http://www.epa.gov.sefewater/uic/classv.html
and http://www.epa.gov/safewater/uic/c5fin-fs.html. The
EPA has announced that it is discontinuing its permission
to operate Class V wells for motor vehicle waste disposal
and large capacity cesspools. [64 Fed.Reg. 68545 (Dec.
7, 1999)].
Certain Class I, II, and III wells are not required to
obtain individual permits (40 C.F.R. § 144.21). These wells
may be authorized by rule if the operator injects within
1 year of a new UIC rule or performs an inventory under
40 C.F.R. § 144.26 within 1 year. All other Class I, II,
and III wells require an UIC permit. An application for
a UIC permit for a new injection well must be submitted
by a ‘‘reasonable time before construction is expected to
begin’’ [40 C.F.R. § 144.31(c)(2)]. If a facility or activity is
owned by one person but is operated by another person,
it is the operator’s duty to obtain an UIC permit [40
C.F.R. § 144.31(b)]. Applicants for a UIC permit must
use the application form provided by the EPA [40 C.F.R.
§ 144.31(e)]. The EPA may issue a permit for an area,
rather than for each well individually, if the wells are
within the same well field, facility site, reservoir, project,
or similar unit in the same state; the wells are operated
by a single owner or operator; and if the wells are used to
inject something other than hazardous waste [40 C.F.R.
§ 144.33(a)].
If cause exists, the Administrator may modify or revoke
and reissue a UIC permit. The Administrator may termi-
nate a UIC permit during its term, or deny a permit
renewal application if there is noncompliance by the per-
mittee, failure to disclose relevant facts, or the permitted
activity endangers human health or the environment (40
CFR § 144.40). A detailed description of the UIC program
is available at http://www.epa.gov/safewater/uic.html.
OTHER SDWA PROVISIONS
The SDWA gives the EPA Administrator the power to
classify an aquifer as a ‘‘sole source aquifer’’ (SSA) if
the aquifer is the sole source of drinking water for a
community. The SSA designation gives the EPA greater
ability to scrutinize federal projects in the designated
area to ensure that the aquifer is not contaminated [42
U.S.C. § 300h-3(e)]. The SSA regulations are located at
40 C.F.R. Part 149. The SDWA also requires that states
with primacy to implement a Source Water Assessment
Program to protect source waters for PWSs better from
contamination (42 U.S.C. § 300j-13). SDWA also provides
federal funding under the Drinking Water State Revolving
Loan Fund to states for drinking water infrastructure
projects (42 U.S.C. § 300j-12).
REPRESENTING GEOPOLITICS OF (HYDRO)
BORDERS IN SOUTH ASIA
EVA SAROCH
Panjab University
Chandigarh, India
INTRODUCTION
In the tradition of political geography, the concept of
boundary/border has been of major importance where
researchers have understood it mainly as an empirical
manifestation of political processes and particularly of the
sovereignty of the state. But borders not only represent
a ‘fixed line’ in space or time, rather, they need to be
understood as being produced and reproduced in the
socio-spatial consciousness of society (a broader form of
consciousness that reflects the ideological and hegemonic
structures). Therefore, it is argued here that boundaries,
apart from being located on terra-firma as a physical line,
also exist metaphorically, symbolically in many ways as a
manifestation of socio-spatial consciousness and as ‘plays
of power’ that generate and exert various codes, rules
and procedures of ‘distinction’ in the process of Othering
such as us/them, sacred/profane, inclusive/exclusive, to
 REPRESENTING GEOPOLITICS OF (HYDRO) BORDERS IN SOUTH ASIA
impose specific understanding through the construction
of knowledge in sociocultural practices and discourses in
politics, administration, economics, or the organization of
ethnic relations on various scales.
In the context of traditional geopolitics of water,
‘mastering space’ by deploying strategies of spatial
domination and control and acquiring and guarding
access to freshwater resources has always been a highly
contested geopolitical issue both among and within
sovereign states. A critical geopolitical approach, focusing
the intricate but intimate interplay between space and its
natural endowments such as water, and the socio-spatial
consciousness of its various stakeholders, seems to suggest
that rivers, for example, are not simply ‘located’ physically
on ground as water flows or as static lines on maps but
are situated/implicated in the very process of ‘Othering’ or
the construction of symbolic/cultural boundaries between
‘us’ and ‘them’ (see Campbell, 1992, in Ref. 1, p. 3).
Attention is thus drawn to how growing disagreements
and rivalries over who gets, when, how and how much
transforms seemingly innocent water flows into highly
resilient hydro-borders. A critical geopolitical perspective
motivates us to look for the sites where hydroborders are
produced and reproduced, both in the form of various
discourses (administrative, political, economic, cultural,
and religious) and practices on various—spatial scales
local, provincial, and national. At yet another analytical
level, it is worth exploring how the ‘criticality’ of water
resources is inscribed on the mental maps of various
stakeholders (at local, national, and regional levels)
as symbols of socio-cultural–religious identification or
differentiation, identity formation, and power-political
pursuit of primacy and security.
Even though the states and societies of South Asia
are hydrographically united—they share the Indus River
Basin (India and Pakistan), the Ganges–Brahmaputra–
Meghna Basin (India and Bangladesh), and the
Ganges–Mahakali Basin (India and Nepal), which
the brief profile of the South Asian waterways sug-
gests—geopolitically they stand divided. Hydro-borders
in the form of mental borders or barriers continue to
appear and reappear in different guises within an existing
asymmetry of wealth, knowledge, and information, and
as part of conflict and struggle among various actors for
spatial control or mastering space (2, p. 115).
Thus, it is argued here that in the context of traditional,
state-centric geopolitics of water resources, which seems
to persist in post-colonial, post-partition South Asia, the
‘hydroborders’ in South Asia continue to be constructed,
reinforced, and legitimized through competing notions
of domestic stability/instability, security/insecurity, and
legitimacy/illegitimacy. Constructed through ‘nationalist’
metaphors, state-sponsored security narratives and even
politically motivated religious speeches, these mental
borders, deceptively hydrographic in argument as well
as in appearance, remain integral to the politics of place-
making and group differentiation in the region. Drawing
upon insights from the ongoing tensions/conflicts between
India–Pakistan, India–Bangladesh, and India–Nepal
(as well as within these countries) over the so-called
‘sharing’ of water resources, this article critically examines
681
the interplay between the boundary-defying/unifying
nature of waterways and the bounding/excluding logic of
geopolitical discourses, imaginations, and representations.
A PREFACE TO SOUTH ASIAN WATERWAYS
Ecologically speaking, a river knows no boundaries.
Flowing through farms, cities, and nations, rivers join
rather than divide places. Any river that flows through
two or more nations is supported by an ecosystem that
cuts across political boundaries and joins the basin states.
In similar perspective, South Asian waterways are the
epitomes of sociocultural synergies, binding the South
Asian landscape into one composite whole. The ancient
‘Sapt Sindu Valley’ and the ‘Gangetic Basin,’ together
known as the Indo–Gangetic Basin, encompass South
Asian waterways. The River Indus and the River Ganga
are the principal rivers of two separate systems, but their
separation is overridden by the unity of the Indo–Gangetic
Plain, which spreads between the Himalayas and the
Deccan. The Great Plains consist of two river basins, those
of the ‘River Indus’ and the ‘Ganga–Brahmaputra,’ and the
network of these rivers constitutes the ‘Himalayan river
system,’ which has not only maintained the geographical
contiguity on the subcontinent but has also been a
fulcrum of different cultural streams. Having sustained
inhabitants, the aquatic communities, and the ecosystem
over centuries, these vast river systems have been the
unifying–binding force for the South Asian geo-economic
and geo-cultural landscape.
PARTITION, OTHERNESS, AND HYDRO-BORDERS
A critical geopolitical approach to the study of partition
suggests that the partition of ‘British India’ was the
convergence of two different phenomena—ethno-politics
and geopolitics. According to Denis Retaille, ethnopolitics
takes identity not territory as its starting point (3, p. 34),
whereas geopolitics is a question of rivalries between
powers for land and for those who live there or rivalries
for territory (4, p. 122). Each complements the other in
producing the other’s ‘excess’ or excessive geopolitics.
Excessive geopolitics ‘‘What’’, as aptly put forth by
Chaturvedi, ‘‘does’’ is transform ideological–ethnopolitical
conflicts relating to the boundaries of identity groups
into geopolitical rivalries over ‘our’ territory versus ‘their’
territory. Consequently, the cold-blooded logic of ‘territory
for the sake of territory,’ or Lebensraum, subsumes the
more humane logics of common habitat or shared spaces’’
(5, p. 150). What sustains excessive geopolitics is the
‘reflexive Otherness.’ The image of the ‘Other’ is significant
in producing borders that are both physical and symbolic.
The permanent presence of ‘Other’ in discourse over water
conflicts in South Asia has produced a manifold character
of hydro-borders that are manifest in various foreign
policy pronouncements, in defining national identity, and
in so-called development projects. Even the language of
dispute or the dispute over language suggests the deadly
hold of ‘nationalist language’ not only in conceptualizing
or thematizing the problem but also strategizing the
resolution of the dispute.
682 REPRESENTING GEOPOLITICS OF (HYDRO) BORDERS IN SOUTH ASIA
Sir Cyril Radcliffe, a British lawyer who was given
just six weeks to draw boundaries in Punjab in the west
and Bengal in the east, was aware that the network of
canals, River Indus, and its five tributaries were a lifeline
for united Punjab and also the continued integration
of the irrigation system, at least on a functional basis,
was fundamental for the basin as a whole. Such a joint
venture run by both countries would not only safeguard
the interests of both peoples but also form a basis of
cooperation which might prove fruitful in the years to
come (as cited in Ref. 6, p. 164). But Radcliffe’s hope of
joint management of the basin for the optimal benefit
of the people and ecology was rebuffed by both Jinnah
and Nehru. According to Jinnah, ‘‘he would rather have
Pakistan deserts than fertile fields watered by courtesy of
Hindus.’’ Nehru curtly informed that ‘‘what India did with
the Indian rivers was India’s affair’’ (6). This is a classic
example that shows how a common past is repudiated as a
time of oppression in which ‘we’ were simply the victims of
oppressive ‘others.’ It also shows how partition has always
been a disciplining event that shuts out other possibilities
of resolving the conundrum whose one form is partitioning
country, homelands, or the network of rivers, the arteries
of the basin.
Hence, the boundary line in Punjab was drawn between
Lahore and Amritsar, cutting across the well-integrated
canal system that draws its water from the Indus and its
five tributaries, Jehlum, Chenab, Ravi, Sutluj, and Beas.
The enforced geography of partition was such that the
headwaters of the rivers of the Indus Basin remained in
India, thereby giving India the status of upper riparian.
Pakistan felt that its livelihood was threatened by the
prospect of unilateral Indian control over the tributaries
that fed water into the Pakistani portion of the basin.
Thus, Pakistan apprehended that a ‘hostile’ India might,
if it so desired, using tunnels, divert water within Kashmir
from the Western to the Eastern rivers, affecting a transfer
before the water even reached Pakistan or the fringes of
‘Azad Kashmir’ (which India chooses to call Pakistan-
occupied Kashmir) (7, p. 234). Whereas India certainly
had its own ambitions for the ‘profitable development’ of
the basin, Pakistani media and the politicians launched a
large-scale national campaign over a canal water dispute.
Pakistan even used the Indus water dispute as a political
tool in the battle over Kashmir being debated at the
United Nations. Former Foreign Secretary of India, J.N.
Dixit, while addressing a plenary session in a seminar,
is reported to have said that, ‘‘it was well accepted in
our strategic studies circles, that much of the passion
on Kashmir was generated because India controls the
headwaters of the Indus’’ (8, p. 161).
A greater insight into the deliberations of the pre-
Indus Waters Treaty period reveals that the Treaty signed
between India and Pakistan in 1960 was dictated and
driven by the logic of ‘Othering’ that jettisoned and
abandoned the more humane logic and vision of joint
development and administration of the integrated Indus
Basin for the optimal benefit of the people of the two
countries. The Treaty led to the fissuring/partitioning of
the Indus and its five tributaries (the three eastern rivers
went to India and the three western rivers to Pakistan)
and of the ‘homelands’ that dwelled in the canal colonies,
but the Treaty also carried, within itself, seeds of bypassed,
unresolved, old, and unanticipated new water conflicts in
the basin.
Even after partition became an accomplished reality,
dialogues to overcome the bitter divides created in the
wake of partition became prey to the partitioned times.
Nothing can be more illustrative in this context than
the water disputes at provincial and local levels. There
are intrastate water disputes, for example, between
Punjab and Sindh (Pakistan), and Punjab, Haryana,
and Rajasthan (India), among others. Within India, in
the wake of the partition, the issue that agitated the
Sikhs even more than the territorial dispute was the
unjust and illegal allocation of Punjab’s river waters
and hydroelectric power generated from them to non-
riparian neighbor states. More recently, Mr. Praksah
Singh Badal, former Chief Minister of Punjab in India,
reportedly said that every drop of water that flows through
Punjab belongs to Punjab. In Pakistan, the water conflicts
between Punjab and Sindh have gained momentum.
According to Sindh, the upper riparian province has been
progressively increasing its illegal share of the waters of
the Indus River since 1889 (9). Apart from this, in 1960, the
military regime in Pakistan surrendered, under the Indus
Waters Treaty, the three eastern rivers to India along
with Sindh’s acknowledged share without prior consent
or compensation to Sindh, leading to water scarcity in
the province.
It is possible to argue that what lies at the very
core of the matter is the entrenched notion of ‘us’
versus ‘them’, as well as a nagging sense of insecurity
on the part of Islamabad that a ‘permanently hostile’
India, which also happens to be the upper riparian
state, might use water resources as a politico-strategic
weapon to paralyze Pakistan’s economy completely.
Such imaginations and suspicions continue to mar
India–Pakistani relations, and they also keep alive the
bitter memories of the bloody historical circumstances,
in which the two ‘Midnight Children’ were born.
Needless to say, the persistence of such hydro-borders
makes any solutions of relatively fewer complex issues
such as the Tulbul Navigation Project/Wular Barrage
virtually impossible.
Similarly, the Ganges water dispute between India and
Pakistan (and after 1971 between India and Bangladesh)
also had its genesis in partition. The Farakka dispute
dates back to 1951 when India decided to construct
a barrage across the Ganges at Farakka to divert
water to Bhagirathi to maintain its navigability, which
was being hampered due to siltation. However, a
deeper analysis suggests that Farakka is not only a
technical problem involving the issue of water sharing
but, as put forth by Begum Khurshida, a ‘techno-
political tangle’ (10, p. 196). Technical debates have
intermingled with political rhetoric, narratives, and
nationalist myths; Farakka is not only a symbol of Indian
domination (10, p. 202) but also projects an idiosyncratic
‘upper riparian psyche’ that intimidates lower riparian
Bangladesh and jeopardizes its water security. The
entire history of the dispute and the tortuous course
 REPRESENTING GEOPOLITICS OF (HYDRO) BORDERS IN SOUTH ASIA
of negotiations over Farakka suggests that what was
being negotiated was not the flowing waters, but the
strategic resource for nationalist politics between India
and Bangladesh.
The Mahakali Treaty of 1996, signed between India
and Nepal (concerning the integrated development of
the Mahakali river), is yet another example where the
ethics of water sharing could not bypass the deeply
entrenched issues of sovereignty and (in)security or for
that matter ideological contestations. In Nepal, the treaty
is considered another sellout of water resources. The treaty
is said to be ‘the blatant manifestation of domination of
Indian expansionism, on one hand, and total surrender
to the Indian big brother on the other.’ Thus, so far, the
dominant trend among the two nation-states has been
to perceive water issues both as a major problem area
and as a valuable resource to enhance their respective
‘national’ power and defense (8, p. 167). In the process, the
water issues have been (mis)used to sustain conventional
geopolitical considerations.
It can also be argued that behind these self-
locked positions are the deeply seated hydro-borders,
created through various kind of geopolitical perceptions,
metaphors/rhetorics/narratives by various protagonists
both within and among the sovereign states involved
at various levels in the dispute over water issues. As a
consequence, water has become a crucial item of resource
politics, nationalism, provincialism, and sub-regionalism
(10, p. 196). All such linkages have shaped and are central
to the elite politics of water and the so-called ‘sustainable
development’ of South Asian waterways.
MAPPING OF RIVERS IN THE ‘CARTOGRAPHIC ANXIETY’
OF NATION
South Asian states continue to suffer from, what Sankaran
Krishna (11, p. 82) calls, ‘cartographic anxiety’ surround-
ing the questions of national identity and survival. As
meaning is invested in all aspects of cartography, so
defined cartography becomes nothing less than the ‘social
and political production of nationality’ itself. And these
cartographic representations not only become alive dur-
ing the election campaign, in the everyday life along the
‘border’ (see 12), but interestingly enough, different imag-
inations/mapping of the river that produce hydro-borders
are invoked in the construction/representation of ‘imag-
ined landscape’ or ‘national identity’ or securing ‘territorial
unity.’
Pakistan, argues Ian Talbot, has been a state searching
for its national identity, and due to persistent failure to
find such an identity, ethnic and tribal identities remain
strong. Even five decades after its creation, the question
remains whether Pakistan is a land for the Muslims or
a nation of Muslims moving towards its destiny as a
nation? (as cited in Ref. 12, p. 153). In an attempt to define
‘national identity,’ sometimes ‘pasts’ are invoked and
‘histories are constructed’ (12). For instance, in a major
restatement (rather ‘rewriting of history of the Indian sub-
continent’) Pakistani historian Aitzaz Ahsan, argues in his
work The Indus Saga and the Making of Pakistan, that the
Indus region (Pakistan) has a primordial existence outside
683
India and centrifugal forces of its own (13). The essential
purpose of this work is, in the words of its author, ‘‘to
discover and define ‘Indus person,’ the Pakistani citizen.’’
According to Ahsan, history states that Pakistan is said to
have existed ‘‘for almost five and half thousand of the last
six thousand years’’ and emphasizes that the ‘‘Indus has
seldom been part of India.’’
Subsequently, his work contends that the Indian
subcontinent has always been at least two different worlds.
The divide between India and Indus is civilizational
and cultural. There has existed a ‘primordial divide’
between the two: ‘a palpable divide between two lands,
two peoples and two civilisations: Indus and India. In fact
the twain has seldom, if ever, truly met. Arguing that
these differences are deep rooted, primordial, and many,
he observes that
The sub-continent is made up of two civilisations, Indus
and Indic or Gangetic and that Indus has been one large,
independent, politico-economic zone for the past countless
centuries. The truly ‘Indic region’ comprising the Gangetic
plain and peninsular India, on the one hand, and the Indus
basin, consisting of Indus river and its tributaries (i.e.,
Pakistan) on the other. Further, more than the giant mountain
range that separate the Indus region from the Central Asia,
that discernible hump between Indus and India along a
line roughly connecting Gurdaspur, in Eastern Punjab, to
Kaithawar on the Arabian sea, has been the critical dividing
line of history and culture. It approximates the division
between India and Pakistan, thus giving to that border the
sanction and strength of history (13, p. 289).
This kind of rewriting of history is an attempt to
evade the conspicuous hydrographic oneness/unity of
the Indus–Gangetic basin. By ingeniously selecting
the facts that serve his ‘partitioning and Othering’
analyses and fitting his mapping of national identity
based on the re-presentation and apt distortion of the
‘Indus Basin’ hydrographically, historically, culturally,
and civilizationally, he is able to suitably construct a ‘Indus
Person’ or Pakistani identity. Further, in reconstructing
a narrative of a distinct cultural heritage, Ahsan has
traced the civilizational roots of a nation-state that
came into being only in 1947, into the distant past
(14, p. 19). According to David Ludden, such an attempt
which constructs beleaguered historical narratives around
partition and sought to inscribe the past with a new
meaning, is a feature of the politics of the cultural
anxieties that have surfaced lately across contemporary
South Asia (14).
In the traditional sense, river has been used as a
boundary to define the territorial limits of a state, but
to engage in rituals to purify ‘frontier rivers’ is not only
to revive, the sacredness of the river but also to deploy
new meaning(s) to the process of territorialization. The
two-day Sindhu Darshan festival (the brainchild of Home
Minister L.K. Advani), in Ladakh (on the Indian side of
Kashmir), where the river Sindhu or Sindh flows before
entering Pakistan territory, was at one level a welcome
gesture toward integrating far-flung parts of the country
into the mainland, whereas, on the other hand, a symbolic
attempt to revive the link between ‘Sindhu and Hindu’,
684 REPRESENTING GEOPOLITICS OF (HYDRO) BORDERS IN SOUTH ASIA
or a ceremony affirming the sacredness of the River
Indus. What has followed ‘Sindhu Darshan’ is the so-
called ‘Brahmaputra Darshan,’ a similar kind of festival
in the northeast part of India, 50 km from the IndoChina
border (15).
It is important to note that in imagination about India’s
national identity, there has always been a conceptual
space for Hindu nationalism. Further, Hindu national-
ism has two simultaneous impulses: a commitment to
the territorial integrity of India as well as a political
commitment to Hinduism. And in the geopolitical imagi-
nation of Hindu nationalists, ‘national unity’ and ‘identity’
are based on territory and religion (16, p. 235). Hence,
it is argued that such festivals/practices, that are held
at the banks of frontier rivers, are an attempt to engage
in the process of sacralization and re-territorialization of
the ‘frontiers’ of the nation-state and also to promote
and consolidate the notion of ‘Akhand Bharat’ (undi-
vided, greater India). These examples also reveal how
different geopolitical imaginations and representations
of the river have provided meaning(s) and a rationale
to different cartographic anxieties, a facet of a larger
post-colonial ‘anxiety syndrome’ or as Samaddar says,
‘insecurity syndrome’ (17, p. 32), surrounding the ques-
tion of territorial unity and national identity. Needless
to say, through representation of a river in a certain
way, the state generates a representation of self and in
the process the boundary-defying river also becomes a
boundary-producing entity.
CONCLUSION
The ethics of sharing water resources posits that water,
as a common natural heritage—especially transboundary
watercourses, including aquifers—must be managed in an
ecologically sustainable manner. But this ethical imper-
ative is undermined as and when domestic geo-political
rivalries, conflicting national ideologies, and geopoliti-
cal discourses conspire together to produce hydro-borders
that are deeply entrenched and frequently (mis)used by
the states as instruments or media of social distinc-
tion, domination, or control (18, p. 65). In their quest
for domestic stability, political legitimacy, regime sur-
vival, and identity building, in both religious-communal
and secular-national terms, South Asian states continue
to articulate and defend a ‘national vision,’ that has little
space to accommodate the concerns of other state or non-
state actors. The process of Otherization that continues
to make its place, that is, production and re-production
of hydroborders in the bilateral or multilateral dialogue
between India/Pakistan/or India/Nepal/Bangladesh over
the water disputes does not reflect a dialogue of accom-
modation/agreement or cooperation but a dialogue of
disagreement, separation, and partition itself. This also
suggests that a new kind of resource geopolitics, in which
different power structures are sustained through the dis-
course and practices, is in the making in South Asia.
As long as the logic of Othering, as manifested in the
form of hydroborders, continues to make its place in
the South Asian geopolitics of water, the prospects for
an ecologically sustainable, gender-sensitive, culturally
appropriate, and socially just development and manage-
ment of South Asian waterways is difficult to achieve. The
prospects for peace in South Asian region also require
that the construction and reconstruction of hydroborders
be undermined new, normative and humane geopolitics
of sharing and sustaining a common habitat in place
of state-centric, power-political geopolitics of mastering
space and resources.
BIBLIOGRAPHY
1. Paasi, A. (2000). Space, Boundaries and The Territorial Con-
struction of Identities. Presented at the BRIT-IV, Conference
Geopolitics, Identities and Sustainability, Feburary 20–26,
Chandigarh.
2. Ahmed, I., Dixit, A., and Nandy, A. (1999). Water, power and
people: A South Asian manifesto on the politics and knowledge
of water. Water Nepal 7: 113–121.
3. Retaille, D. (2000). Geopolitics in history. Geopolitics 5(2),
Autumn: 35–51.
4. Lacoste, Y. (2000). Rivalries for territories. Geopolitics 5(2),
Autumn: 120–158.
5. Chaturvedi, S. (2003). Towards a critical geography of
partition(s): Some reflections on and from South Asia.
A guest editorial in Environ. Plann.: Soc. Space 21(2):
148–154.
6. Michel, A.A. (1967). The Indus Rivers: A Study of the Effects
of Partition. Yale University Press, New Haven, CT.
7. Chapman, G.P. (2000). The Geopolitics of South Asia: From
Early Empires to India, Pakistan and Bangladesh. Ashgate,
Aldershot.
8. Gyawali, D. (2001). Water accords in South Asia: Plu-
ralist politics under monistic design. In: Peace as
a Process: Reconciliation and Conflict Resolution in
South Asia. R. Samaddar and H. Reifeld (Eds.). Manohar,
New Delhi.
9. Tarren, I. (2001). Sindhi Association of North America: Let-
ters and petition. March 21. Available: http://www.sanalist.
org/letters.htm.
10. Samaddar, R. (1997). Flowing waters and the nationalist
metaphors. Stud. Conflict Terrorism 20: 195–206.
11. Krishna, S. (1997). Cartographic anxiety: Mapping the body
politic in India. In: Political Geography: A Reader. J. Agnew
(Ed.). Arnold, London.
12. Chaturvedi, S. (2002). Process of othering in case of India and
Pakistan. J. Econ. Soc. Geogr. 93(2): 149–159.
13. Ahsan, A. (1996). The Indus Saga and the Making of Pakistan.
Oxford University Press, Karachi.
14. Tan, T.Y. and Kudaisya, G. (2000). The Aftermath of Partition
in South Asia. Routledge, London.
15. The India Express. (2001). After Sindhu, it’s Brahmaputra
Darshan in Arunachal. February 18.
16. Varshney, A. (1993). Contested meanings: India’s national
identity, Hindu nationalism, and politics of anxiety. Daedelus
122(June): 227–261.
17. Samaddar, R. (2000–2001). The last hurrah that continues.
Transeuropeannes 19/20: 31. 48.
18. Chaturvedi, S. (2001). Mental borders and the prospects of
peace in South Asia. In: Peace as a Process: Reconciliation
and Conflict Resolution in South Asia. R. Samaddar and
H. Reifeld (Eds.). Manohar, New Delhi, pp. 61–80.

WATER TRANSFERS
DAVID L. FELDMAN
University of Tennessee
Knoxville, Tennessee
Water transfers are the diversion, reallocation, or
appropriation of surface or groundwater from one
watershed, drainage basin, or aquifer to another. All
transfers entail water exchange between catchments.
They may also move water from one political jurisdiction
to another, exacerbating their impacts and complicating
efforts to resolve stakeholder conflicts that they generate.
In addition, transfers may be endeavored through various
means including pipelines, tunnels, aqueducts, pumping
facilities, or even seaborne tankers—an idea contemplated
under proposals to transfer water from the Great Lakes to
the Middle East.
MOTIVES AND MAJOR ISSUES
Water transfers are nearly as old as civilization. The first
recorded large-scale transfers occurred in the ancient Near
East. About 4000 years ago, the Sumerians discovered how
to divert the Euphrates River (in what is present-day Iraq)
to irrigate crops and reduce reliance on the vagaries of
seasonal rainfall. Other nearby societies followed suit and
built administrative infrastructures to support transfers,
leading to speculation that the need to maintain such
infrastructures contributed to the growth of political
authoritarianism (1,2).
One motive for transfers is to provide sufficient water
to satisfy agricultural, industrial, or other needs to regions
perceived to have inadequate water supplies. A secondary
reason is to promote regional development. This was
a major motive for building diversion projects in the
southwest United States in the nineteenth century, for
example. For the exporting region, the benefits of transfers
include economic compensation and better relations with
neighbors. However, exporting regions are not always
willing partners in transfers, in part because they may
have unintended environmental consequences or may be
undertaken without adequate consultation (3). Regardless
of motive, five major issues tend to be associated
with transfers:
• Adequacy of Return Flow. Most water transfers
involve some return flow to the basin of origin. Issues
raised by this return flow include how much and when
water will be returned. If the return flow is relatively
prompt and abundant, harm to ecological resources
from low river levels, changes in hydrology, and/or
losses to the local economy due to foregone benefits
are likely to be less than if return flows are small in
volume and/or late.
• Loss of Water Rights. Transfers impose impacts
on those who have access to water through legal
guarantee. These may be comparable from place-
to-place, but remedies available under common law
differ among regions. In states that have prior
WATER TRANSFERS 685
appropriation systems, there has tended to be
less recourse to deterring transfers thought to be
harmful than in states that have riparian rights
systems—although water rights issues arise in
both systems.
• Adverse Ecological Impacts. In general, water trans-
fers generate two distinct forms of ecological impact:
to in-stream flow (the volume, flow, and quality of
water naturally found in rivers and streams prior to
the building of impoundments or diversion projects)
and biota transfer (the consignment, usually unin-
tended, of exotic fish or other aquatic species from
one basin to another, that adversely affect native
species’ welfare).
• Water Agency Objectives. Agencies that manage
natural or cultural resources are affected by water
transfer proposals in several ways. Often, transfer
decisions are undertaken by an agency to meet
obligations to promote regional development through
water delivery (e.g., the Bureau of Reclamation).
Conversely, an agency charged with protecting
natural/cultural areas (e.g., National Park Service)
may be reluctant to permit transfers.
• Adverse Social Impacts. Although difficult to mea-
sure, transfers generate significant, often adverse
social impacts comparable to those engendered by
other resource allocation decisions involving unequal
power and authority, representation, and resource
access. Specific impacts include changes in lifestyle,
reductions in regional income, fewer opportunities
for economic development, and abridgment of recre-
ational amenities.
ADEQUATE RETURN FLOW
Water transfers, especially if large, can have profound
effects on the quality of water in the basin from whence
water is taken, and on the quality of water in the
receiving basin. Here, we consider the first of these. Many
water transfers involve what amount to temporary shifts
of water between basins. Used, often untreated water
is rerouted back to the basin of origin. Such return
flows are often negotiated in agreements to contract
transfers and, in riparian rights systems, may be required
to ensure that natural stream flow is unimpeded (in
general, this is one reason why riparian rights systems
discourage transfers).
When transfers are permitted in riparian rights
systems, return flows are supposed to occur in the vicinity
of the same riparian landholding from which water was
originally diverted, and its quality is supposed to be
unimpaired. Historically, such return flows are rarely
monitored in many states, do not occur with regularity,
are usually easier to ensure when the transfer is between
two adjoining watersheds in the same state, and are
difficult to measure precisely when they occur. Moreover,
if they do not occur during periods of low flow, when most
needed, the ecological resources of the exporting basin may
be harmed.
686 WATER TRANSFERS
WATER LAW AND WATER TRANSFERS
All water law systems predicate certain principles
regarding the judicious transfer of water from one
basin to another. At the outset, two characteristics of
American water law, significant for water transfers,
must be noted. First, far more attention has been
paid to regulating surface, as opposed to groundwater,
transfers because it is difficult to determine exactly what
constitutes a groundwater transfer. Underground aquifers
are connected to one another and to surface waters in
enigmatic ways often hard to prove in courts of law.
Negotiating allocation formulas for surface waters usually
entails measuring the amount of water to be apportioned
at gauging stations at different seasons of the year and,
then, limiting how much water an ‘‘upper’’ state or user
can draw, or guaranteeing a certain amount of water to
the ‘‘lower’’ state or user. For aquifers, however, there is
no upper and lower user in the same sense as for surface
waters (5).
Second, states may not discriminate in the way they
manage out-of-state, as opposed to in-state, transfers.
Article 1, Section 9 of the Constitution prohibits states
from giving preference, in their regulation of enterprises,
to businesses operating within their borders over those
based in other states. Originally applied to regulation
of ports and vessels traversing interstate waters, the
clause has been construed by federal courts to mean that
Congress has broad plenary power to regulate interstate
commerce, manage and use water for navigation, and
regulate nonnavigable streams. It has also been construed
to mean that water is a commodity in interstate commerce
and states cannot discriminate against one another’s
ability to engage in such commerce. This is an important
consideration in efforts by states to regulate interbasin
transfers (see ‘‘Conclusions’’).
Riparian Doctrine and Water Transfers
Under riparian law, the predominant legal system in
the eastern United States, a landowner has the right
to ‘‘reasonable’’ use of the water flowing past her/his
property, subject to the rights of other downstream
riparian landowners. Water used but not consumed must
be returned to the watercourse unimpaired inquality. In
general, diverting water from the drainage area of a
watercourse without return flow is deemed ‘‘unreasonable’’
and, if a downstream riparian complains, can be expressly
forbidden (6,7).
In practice, courts have ruled that ‘‘reasonable’’
diversions are allowable under riparian rights systems
and typically define such transfers as those that are
socially beneficial and impose no harm. Included under
this definition are transfers undertaken for the use and
benefit of public supply systems. In practice, definitions
of ‘‘reasonableness’’ vary from case-to-case and court-to-
court, and riparian doctrine and court precedents are
unclear on the conditions for mitigating their adverse
impacts. How to ensure adequately timed return flow
is also uncertain (8,9). Moreover, a ‘‘reasonable use’’
transfer right can be superseded if a subsequent user
can demonstrate a need that is more reasonable (10).
Transfers Under Prior Appropriation Doctrine
Appropriation law, the predominant water rights doctrine
in 19 western and southwestern states lying west of the
100th meridian, quantifies and prioritizes water rights
according to the ‘‘first in time, first in right’’ principle:
the first to put water to a beneficial and reasonable
use acquires a right superior to later appropriators. This
principle grants use of a specified amount of water for a
stated beneficial use each year, subject only to the rights
of other appropriators (11,12). Land ownership is not the
basis for this right: one can acquire it through purchase or
other means. Moreover, water rights exist only when water
is appropriated (i.e., diverted and used) for a beneficial
purpose. Historically, this encouraged transfers.
Traditionally, off-stream uses (e.g., irrigation) were
considered beneficial, whereas in-stream uses by fish
and wildlife were treated as inherently wasteful (7).
Senior appropriators could take their full allotment even
if insufficient water remained for junior appropriators’
needs. This practice served to bias the concept of
‘‘beneficial’’ to mean off-stream, consumptive uses. More
important, appropriated waters could be used virtually
anywhere, regardless of the distance from a stream. Most
appropriation states now define beneficial use by statute.
Preferred uses are explicitly defined, and reforms intended
to reduce environmental damage through unregulated
transfers, such as prescription of minimum stream flows,
have been adopted (13,14).
ECOLOGICAL IMPACTS OF TRANSFERS
Dams, impoundments, pipelines, and other ‘‘hydrologic
alterations’’ that enable water transfers may lead to
severe changes in in-stream flow volumes, velocity, and
quality in both exporting and destination watersheds,
as well as fragmentation and loss of aquatic and riparian
habitat (15,16). An important, but often overlooked impact
is biota transfer, which can also result in both basins of
origin and destination.
The Garrison Diversion Unit (GDU), a large trans-
fer project in the Upper Missouri basin authorized by
Congress in 1965, exemplifies these problems. The project
has been criticized by Canadians due to concerns that
return flows from its irrigation subunits could have neg-
ative impacts on fisheries and flood stage levels in the
Red River flowing north into Manitoba. Canada claims
that Missouri River biota would be transferred into Cana-
dian waters in violation of the 1909 Boundary Waters
Treaty designed to prevent contamination, diversion, or
degradation of the transboundary waters shared by both
nations. The project’s size and scope have been signifi-
cantly curtailed since the 1990s, but the biota transfer
issue, especially, exemplifies two general problems of
water transfers applicable elsewhere: (1) the benefits and
costs of transfers may differ across affected political juris-
dictions, and (2) uncertainty regarding impacts may be
exacerbated by international disagreement. Canadian sci-
entists were much more adamant about the risks of biota
transfer than U.S. researchers whose work was sponsored
by the Bureau of Reclamation (3).

AGENCY MANAGEMENT IMPACTS
Proposals for transferring water from one basin to
another may challenge the responsibilities of an agency
charged with protecting environmental quality or cultural
amenities (e.g., historically significant sites) located within
lands embraced by its mandate. By contrast, the provision
of water supply may be viewed as so central to the
mandated responsibility of another resource-development
agency as to justify transfers and even override other
considerations.
An example of how these divergent views may play
out is offered by the experience of the National Park
Service (NPS) and Bureau of Reclamation (BOR), agencies
which have, on occasion, seen their interests conflict over
water transfers. Under the National Park Service Act
of 1916, NPS is responsible for protecting the natural,
unimpaired flow of rivers flowing through its parks and
other protected areas. By contrast, since 1902, the BOR
has been responsible for developing irrigation and other
water development projects in the West.
Generally, the NPS tries to balance its claims to needed
in-stream flow against the reasonable desire of states
(both eastern and western) to protect appropriative and
riparian rights. To achieve this balance, the NPS asserts
rights ‘‘for quantities determined to be the minimum
amounts needed to protect the primary purposes’’ of a
given park (12). According to one Interior Department
solicitor, ‘‘appropriation for authorized federal purposes
cannot be strictly limited by what state water law says is
a ‘diversion’ of water or a ‘beneficial use’ for which water
can be appropriated’’ (17).
In practice, when agencies cannot agree on conditions
for transfers or when the economic and political stakes
are high, Congress may intervene as it did in 1947 in
requiring the NPS to allow the BOR to construct a water
diversion project (the Colorado-Big Thompson Project)
through a portion of Rocky Mountain National Park.
This project’s purpose was transferring water from the
uppermost reaches of the Colorado River basin, which
rises on the state’s western slope, to the Platte River
Basin northeast of Denver. The project’s water storage
capacity exceeds 710,000 acre-feet, and it now irrigates
1,000,000 acres (18). To compensate for potential harm,
storage reservoirs were constructed for the project, in part,
to ensure adequate in-stream flow to Upper Colorado River
users and to permit reliable transfers to the eastern slope.
ADVERSE SOCIAL IMPACTS
All water transfers generate social impacts. In the
western United States, where water marketing has gained
widespread acceptance as a means of diverting water from
low- to high-value uses, these impacts can be considerable.
Studies show that water marketing in conjunction with
transfer can be unpopular, especially in an importing
region. In the San Joaquin Valley of California and
the Grand Valley of western Colorado, two potential
water-exporting areas, residents it was found, were more
likely to oppose water transfers than residents of water-
importing areas. Concerns included potential impacts to
WATER TRANSFERS 687
residents’ economic welfare and way of life and whether
allocations between exporting and importing regions
provide for reciprocal benefits such as protecting future
needs and preventing adverse environmental impacts (19).
Generally, agricultural interests are more likely than
other groups to approve of water transfers and to favor
marketing as a tool for enabling such transfers to occur.
Despite such concerns, other studies suggest that water
transfers may serve as an effective means of diverting
water from low- to higher valued needs and even as
a means of restoring in-stream flow (20). In parts of
the American West, for example, including California,
Montana, Nevada, Oregon, Texas, and Washington,
special markets negotiated by environmental groups have
had some success in reducing volumes of water diverted
off-stream for irrigation and maintaining stream flows for
fish and other environmental and recreational benefits
(20: 14). In at least one instance, governmental entities
have actually purchased the rights to in-stream water,
establishing, in effect, a ‘‘reverse’’ transfer (21: pp. 5–11).
Potential barriers to this practice include the lack of
a physical infrastructure for moving water from place-
to-place; ambiguities in water law permitting markets,
especially under riparian systems; and ‘aligning’ the
price of water between buyer and seller. An underlying
investment assumption in such deals is that, over time,
transfer of water for restoring in-stream flow will yield a
greater benefit than diversion for off-stream uses (22).
CONCLUSIONS—WATER TRANSFER DISPUTES AND
THEIR IMPLICATIONS
Since the 1980s, disputes over water supply and allocation
have arisen in many parts of the southeast United States,
underscoring the fact that no region is immune from
conflicts over competing demands for water. Sources of
these disputes include population growth, urbanization,
and competing demands, especially for agricultural
irrigation, power, and public uses, as well as debate
over how to balance off-stream and in-stream needs (23).
One result of these disputes has been plans, real or
contemplated, to transfer water from one basin to another.
One of the most contentious of such plans began in 1983
when the city of Virginia Beach, Virginia, indicated its
intent to divert water from the Roanoke River to satisfy
its growing needs. This led North Carolina to protest
the project’s potentially adverse impacts on ecological
resources and the local economy of that part of the Roanoke
Basin in the latter. After a nearly 15-year battle costing
upward of $12 million, the project was approved after court
challenges failed to demonstrate convincingly adverse
effects from plans to divert approximately 60 MGD. A
continuing legacy of this dispute, however, is the precedent
which it may have established for additional diversions,
as well as how to measure adverse impacts: as present-day
losses or as potential future ones (24,25)?
Recently, conflict between Alabama, Florida, and Geor-
gia over water allocation in the Apalachicola–Chattahoo-
chee–Flint basin led some Atlanta-area officials—contem-
plating an eventual ceiling on withdrawals from a tri-state
water compact—to look elsewhere for new supply. Among
688 WATER TRANSFERS
options explored, beginning in 1998, was the possibility
of diverting water from the Tennessee River in South-
east Tennessee via pipeline. The mere consideration of
this alternative partly convinced officials in Tennessee of
that state’s vulnerability to outside demands and led the
legislature to pass an Interbasin Water Transfer Act in
2000 to regulate transfers of water from a basin originat-
ing in Tennessee to any other basin—in or outside the
state (26–28).
These and other disputes over water transfers are
instructive for one major reason: they underscore that
decisions to undertake, or to deny, transfers, though
partly based on perceived needs and environmental
concerns, often result from the distribution of power
and authority. Worldwide, a significant impediment to
different jurisdictions reaching common accord on water
allocation, and coming into conflict over transfers, is
the perception by protagonists that they lack adequate
influence over the outcome of negotiations or the ability to
leverage decisions.
Oftentimes, this lack of influence is manifested in
a lack of legal or economic tools (e.g., equitable water
markets, effective regulatory frameworks, infrastructure
to allocate water and manage competing demands) to
resolve disputes. Just as inequalities of power and
resources have been recognized as inhibiting durable
solutions to water conflicts between, for example, Israel
and Jordan, and Israel and the Palestinian West Bank
(especially when compounded by secrecy and fundamental
value differences), they may also inhibit compromise and
accord among states within a nation (29–32). Likewise,
when countries—like states within a country—find the
means to cooperate, it is often the result of developing
conjoint, equitable cooperative management schemes that
are adequately funded, as in the Mekong River basin states
of Thailand, Cambodia, and Vietnam, for example (33).
The challenges facing transfer decisions are formidable,
but opportunities for working toward common solutions
are plentiful.
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Waterweek June 19: 7.
26. (1997). Atlanta Regional Water Supply Plan Update. Adopted
December 3, Atlanta Regional Commission—unpublished
report.
27. Feldman, D.L. and Elmendorf, J. (2000). Water Supply
Challenges Facing Tennessee: Case Study Analyses and
 RESERVED WATER RIGHTS FOR INDIAN AND FEDERAL LANDS
the Need for Long-Term Planning. Prepared for the
Environmental Policy Office, Tennessee Department of
Environment and Conservation, by the Energy, Environment
and Resources Center, University of Tennessee, Nashville,
TN, June.
28. (2000). Inter-Basin Water Transfer Act. H.B. 3002 & S.B.
3074. General Assembly of Tennessee.
29. Hassoun, R. (1998). Water between Arabs and Israelis:
reaching twice-promised resources. In: Water, Culture, and
Power: Local Struggles in a Global Context. J.M. Donahue
and B.R. Johnston (Eds.). Island Press, Washington, DC,
pp. 313–338.
30. Elmusa, S.S. (1995). Dividing common water resources
according to international water law: the case of the
Palestinian Israeli waters. Nat. Resour. J. 35(Spring): 223.
31. Morris, M.E. (1993). Dividing the Waters: Reaching Equitable
Water Solutions in the Middle East. RAND/P-7840. RAND
Corporation, Santa Monica, CA.
32. Morris, M.E. (1992). Poisoned Wells: The Politics of Water
in the Middle East. Reprinted from Middle East Magazine,
RAND/RP-139. RAND Corporation, Santa Monica, CA.
33. Browder, G. and Ortolano, L. (2000). The evolution of an
international water resources management regime in the
Mekong River Basin. Nat. Resour. J. 40(3): 499–532.
RESERVED WATER RIGHTS FOR INDIAN AND
FEDERAL LANDS
EVE WOODS
Denver, Colorado
Most rights to the use of water are created under state law.
In general, states east of the Missouri River follow riparian
law and the nineteen contiguous western states follow the
prior appropriation doctrine or a hybrid of the two. The
federal government has a strong policy of deference to
state water law. However, some federal lands and tribal
lands have a unique type of water right that occurs under
federal law. These ‘‘reserved water rights’’ attach to federal
lands that the Government kept or set aside for particular
purposes and to Indian reservation lands that are held
for the benefit of a federally recognized American Indian
tribe.1
Historically, the United States set aside land from the
public domain for federal purposes such as parks and
national forest without taking the actions necessary to
establish a water right under state law. It also negotiated
treaties with American Indian Tribes that failed to address
the question of a water supply for the lands set aside for
the tribe. The doctrine of reserved water rights is based
on the contract law theory that the federal government
intended to reserve adequate water for itself when it set
aside land for federal purposes, even though it did not say
so expressly in the document setting aside the land (1).
Likewise, when an Indian tribe reserved some of its land
for itself while ceding the rest to the United States by
treaty, this doctrine recognizes that the tribe must have
1
A list of federally-recognized tribes is published annually by the
Department of the Interior in the Federal Register.
689
intended to reserve some waters for itself, to make the
land it reserved useable.
The United States Supreme Court first recognized a
reserved water right in the 1908 case of ‘‘Winters v. United
States.’’ The Court held that the Fort Belknap Tribe in
Montana and the United States had impliedly reserved
water for the Fort Belknap Reservation via their treaty of
1888. The Tribe was awarded 5000 acre feet of water from
the Milk River for irrigation use on the Reservation, with
a priority date of 1888, which gave the tribal water right
priority over the rights of the upstream settlers who had
begun farming the area in 1898. Reserved water rights are
also called ‘‘Winters rights’’ after the name of that case (2).
From 1908 to 1963, the reserved rights doctrine was
applied only to tribal water rights, and rarely at that. In
1963, in Arizona v. California, the reserved rights doctrine
was extended to provide water rights for nontribal federal
lands as well.
Reserved water rights share some characteristics with
both riparian water rights and prior appropriation water
rights. Reserved rights are riparian in the sense that
they extend to the waters adjacent to or beneath the
lands that they serve (3). They are riparian because they
exist independent of whether the water has been diverted
or applied to beneficial use. The full quantity of the
reserved right develops in lieu of use and cannot be lost by
nonuse. However, unlike riparian rights, a reserved right
has a priority date. It is administered within the prior
appropriation system—‘‘first in time is first in right’’—and
so has the power to call out junior users in times of
water shortage.
QUANTITY OF THE RIGHT
The quantity of a reserved water right is ‘‘that amount
necessary to fulfill the purposes of the reservation’’ (4). It
encompasses both the current and the future needs for
water on the reserved lands (5).
This amorphous quantification standard has been
difficult to implement. For federal lands set aside under
an Act of Congress, the Congressional purpose stated or
implied in that Act is the ‘‘purpose of the reservation’’ used
for measuring the water right (6). The court uses expert
testimony to determine the amount of water necessary to
preserve wildlife or habitat, or to meet whatever purpose
applies. If the land was set aside for more than one
purpose, there can be only one reserved water right, and
it will only be enough water to meet that primary purpose
of the reservation (7).
Until recently, quantification of tribal reserved water
rights was usually based on the PIA standard, i.e., enough
water to grow crops on the ‘‘practicably irrigable acreage’’
of the Indian reservation, which was because many
treaties stated that the purpose of the reservation was
to develop a viable agricultural economy, intending that
the tribal members would assimilate to the lifestyle of the
nonIndian farmers who were then settling the West. To
determine the number of practicably irrigable acres, courts
look to economic and engineering experts to determine for
how many acres the economic benefits of growing crops
690 WETLANDS POLICY IN THE UNITED STATES: FROM DRAINAGE TO RESTORATION
will at least equal the costs of transporting and applying
the water to the land (8).
More recently, an Arizona court rejected the PIA
standard in favor of a ‘‘homeland’’ standard for quantifying
tribal reserved rights (9). The purpose of the reservation
in that case was not agriculture, but was to provide a
permanent homeland for the tribe. The court held that
determining the minimal amount of water necessary
to accomplish the homeland purpose—both now and in
the future—would require analysis of six diverse factors
concerning the tribe’s cultural practices and the potential
for economic development on the reservation. That new
test has not yet been applied by any court.
The quantities of reserved rights vary greatly. They
range from one thousand acre feet to hundreds of
thousands of acre feet. Many tribal and federal reserved
rights have yet to be quantified. The eventual use of
those reserved rights will have a potentially enormous
effect on the amount of water available to junior users on
those streams.
McCARREN AMENDMENT
Although they are created under federal law, reserved
water rights can be adjudicated by state courts (43 U.S.C.
§ 666). In the McCarran Act, the United States Congress
waived federal sovereign immunity from suit to allow
state courts to join federal claims into a comprehensive
adjudication of a river system or other source. This
1952 Act prompted many western states to revise their
statutes to allow for general stream adjudications, thereby
forcing the quantification of reserved rights claims. Such
adjudications are complex, requiring inter alia, a field
analysis of each water claim in the basin to determine the
quantity and priority date of each right.
PRIORITY DATE
The priority date of a reserved right is the date of the
federal act or tribal treaty reserving the land, which is
usually a relatively early right that will have priority
over all water users who settled the area after that date.
Under certain circumstances, a tribe may have a ‘‘time
immemorial’’ priority date for its reserved right. This
water right is, by definition, the earliest right on the
stream (10).
The Pueblos of New Mexico also have time immemorial
water rights. However, Pueblo water rights are not
reserved rights. The quantity of a Pueblo water right
is limited to past beneficial use and cannot be expanded
to meet current or future Pueblo needs (11). Like reserved
rights, Pueblo rights cannot be lost for nonuse.
BIBLIOGRAPHY
1. United States v. Winans. (1905). 198 U.S. 371.
2. Winters v. United States. (1908). 207 U.S. 564.
3. In re General Adjudication of Gila River. (1999). 989 P.2d 739
(Ariz).
4. In re Big Horn. (1988). 753 P.2d 76 (Wyo), aff’d sub nom,
Wyoming v. U.S. (1989). 492 U.S. 406.
5. Arizona v. California. (1963). 373 U.S. 546.
6. United States v. New Mexico. (1978). 438 U.S. 696.
7. Cappaert v. United States. (1976). 426 U.S. 128.
8. Arizona v. California. (1963). 373 U.S. 546.
9. In Re General Adjudication of Gila River. (2001). 35 P.2d 68
(Ariz.).
10. United States v. Adair. (1984). 723 F.2d 1394 (9th Cir. 1983),
cert. denied, 467 U.S. 1252.
11. New Mexico v. Aamodt. (1976). 537 F.2d 1102 (10th Cir.).
READING LIST
Tarlock, Corbridge, and Getches. (2002). Water Resource Man-
agement: A Casebook in Law and Public Policy, 5th Edn.
Foundation Press, New York, pp. 839–909.
Colby, B. (2004). Tribal Reserved Water Rights.
WETLANDS POLICY IN THE UNITED STATES:
FROM DRAINAGE TO RESTORATION
ANDREA K. GERLAK
Columbia University
New York, New York
Historically, swamps have been regarded as wastelands,
evoking reactions of ‘‘disgust at their sight and smell,
fear of malaria and yellow fever, and unease about
rich resources running to waste within them.’’ George
Washington’s leadership in the Great Dismal Swamp
Company characterized early notions of swamps. The
Company, designed to drain Virginia’s swamp for timber
production, promoted the notion that swamps were useless
lands (1). The Swamp Land Acts of the 1850s are a further
illustration as the federal government encouraged states
to ‘‘reclaim’’ nearly 6.5 million acres of wetlands.
By the beginning of the twentieth century, perceptions
began to change. Sportsmen and hunters called attention
to declining number of waterfowl and initial federal
efforts regarding wetlands focused almost exclusively on
waterfowl habitat. In 1903, President Theodore Roosevelt
established the first National Wildlife Refuge by executive
order to protect endangered species on Pelican Island,
Florida. With the Migratory Bird Hunting Stamp Act
of 1934, Congress established a special fund to finance
wetland acquisitions for duck habitat.
Despite such efforts, however, water resources contin-
ued to be managed largely for economic development pur-
poses. The U.S. Army Corps of Engineers (Corps) became
a key instrument in ‘‘modernization’’ during America’s
era of industrialization (2), and exerted broad discretion
by undertaking improvements in the navigability of the
nation’s waterways under the 1880 Rivers and Harbors Act
and the 1899 Refuse Act. Many federal programs provided
incentives for wetland conversion, including subsidies for
agriculture, grazing and forestry, reservoir construction,
and flood relief and insurance.
 WETLANDS POLICY IN THE UNITED STATES: FROM DRAINAGE TO RESTORATION
By the 1960s, environmental values emerged to
challenge the old paradigm. Public alarm over declines
in many animal species, including the symbolic bald eagle,
led to endangered species legislation in the 1960s and
1970s. The term ‘‘wetland’’ replaced ‘‘swamp.’’ The Army
Corps inched toward reform as well. In response to an
emerging concern for water pollution, the Corps began to
revise its permit regulations to take into account ‘‘public
interest review,’’ beyond pure economic impacts. Based
on Zabel v. Tabb [430 F.2d 199 (5th Cir. 1970), cert.
denied, 401 U.S. 910 (1971)] in 1971, the first federal court
case over wetlands, the Corps was granted ‘‘ecological
authority’’ to weigh noneconomic factors in reviewing
and denying permit applications under its original 1899
authority. Real change occurred from passage of the
Federal Water Pollution Control Act of 1972. Known
as the Clean Water Act (CWA), this legislation marked
the beginning of broad-based wetlands protection in
the United States. Wetlands came to be valued as
biologically diverse ecosystems providing great public
benefits such as improved water quality and protection
from floods. This marked the beginning of federal efforts
at wetlands protection. During the next 30 years, wetlands
management would become highly politicized (3).
WETLANDS, LEGISLATION, AND LITIGATION
By the Federal Water Pollution Control Act amendments
of 1972, Congress established a comprehensive program
of regulations and permits to control water pollution.
Section 404 of the CWA marked the first federal policy
designed to preserve wetlands. Section 404(b)(1) states
that ‘‘the guiding principle should be that degradation or
destruction of special sites may represent an irreversible
loss of valuable aquatic resources.’’ In less than two pages,
Congress established a shared authority between the
Army Corps and the newly created U.S. Environmental
Protection Agency (EPA). As a political compromise, the
Corps was designated as the lead agency to administer the
permit system for discharging dredged and fill materials
into navigable waters. The Corps’ preliminary permit
decisions would then be reviewed by the EPA that had
authority to veto the Corps’ decision. This compromise,
although appearing innocuous, would complicate and
burden Section 404 implementation.
A historic tradition in water resource management, the
Corps embodied the older distributive/allocative model of
policy-making, referred to as the ‘‘pork barrel.’’ Such an
approach allowed a high degree of local and state agenda-
setting autonomy. The newly created EPA, meanwhile,
embraced the new, centralized regulatory model, referred
to as ‘‘command and control,’’ and focused primarily
on water quality. Given the distinct organizational
culture of the agencies (4) implementation of Section
404 immediately was characterized by conflict between
the EPA and Corps. Generally, the Corps preferred a
limited approach, whereas the EPA pushed for expansive
authority to regulate all wetlands in the United States.
The federal judiciary would play a powerful role as envi-
ronmental groups challenged the Corps’ implementation
and regulatory practices. By Natural Resources Defense
691
Council v. Calloway (392 F. Supp. 685) in 1975, the
U.S. Supreme Court pushed the Corps towards broader
wetlands protection and forced the Corps to revise its
regulations to include significant intrastate waters, in
addition to interstate waterbodies. This case sparked
debate in Congress and by the 1977 amendments to the
CWA, Congress refined and expanded its definition of wet-
lands demonstrating a clear congressional commitment
to wetlands protection. In response to industry concerns,
however, the amendments allowed exemptions for ongoing
normal ranching, farming, and silviculture.
President Carter attempted to create a more unified
wetland policy by issuing Executive Order 11990 (42
Fed. Reg. 26 (1977). In calling on all federal agencies
to minimize wetland loss on land managed by the
federal government, this action represents the highest
administrative action ever taken to protect wetlands.
Two year later, Carter’s Attorney General Benjamin
Civiletti gave greater weight to the EPA in wetlands
implementation [43 Op. Attorney General 15 (1979)]. In
attempting to resolve interagency disputes, he determined
that the EPA enjoyed ultimate authority to decide the
scope of wetlands regulation because that agency carried
the responsibility for implementing the other sections of
the 1972 CWA.
The courts pushed wetlands protection even further
with U.S. v. Riverside Bayview Homes (474 U.S. 121) in
1985. Here, the U.S. Supreme Court issued a landmark
decision in wetlands policy. By defining the waters
covered broadly, the Court ruled that the Corps and EPA
could regulate wetlands even when no surface water or
other apparent hydrologic connection exists between the
wetlands and an adjacent waterbody.
THE POLITICS OF WETLAND MANAGEMENT
At about the same time that it enacted the CWA,
Congress passed legislation that brought still more
federal agencies and departments into the wetlands policy
arena. A 1970 statute, The Water Bank Act, created a
federal program that paid farmers to preserve wetlands
habitat for waterfowl. Administered by the Department of
Agriculture’s Soil Conservation Service (now the Natural
Resources and Conservation Service), this program has
grown significantly during the past 30 years. In 1973, still
another dimension was added when Congress passed the
Endangered Species Act (ESA). Administered by the U.S.
Fish and Wildlife Service (FWS), this highly controversial
statute added another federal player to the list of agencies
implementing the wetlands protection policy. Consultation
with the FWS became the norm because so many wetlands
are home to endangered and threatened species. In some
situations, the FWS has been given the authority to
manage sensitive wetland areas. For example, in 1973,
more than 107,000 acres of the Great Dismal Swamp was
deeded to the Department of the Interior for the creation of
the Great Dismal Swamp National Wildlife Refuge. How
far we have come from the days of George Washington’s
Great Dismal Swamp Company. Thus, during the last
30 years, the FWS has become an integral component of
national wetlands policy.
692 WETLANDS POLICY IN THE UNITED STATES: FROM DRAINAGE TO RESTORATION

By the end of the ‘‘environmental decade’’ of the 1970s, acres per year, or 57% of the total gross conversion (9,
at least four federal agencies had major responsibilities p. 21).
for protecting wetlands. A number of other federal In the modern era, implementation of Section 404
agencies, including the Forest Service, the Bureau of has been characterized by heightened polarization of
Reclamation, and the Bureau of Land Management, competing interests and politicization of science. The
had ancillary responsibilities. Table 1 provides a list polarization of interests can be traced to the wetlands
of the primary federal agencies involved in wetlands manual debate of the late 1980s and early 1990s. In 1987,
protection today. agencies moved to adopt a single manual to delineate
Other legislation added several more bureaucratic wetlands during the permit process. Economic interests,
participants to an already crowded landscape. For led by the Farm Bureau and the National Wetlands
example, the Farm Service Agency in the Department Coalition (NWC), vehemently opposed such efforts.
of Agriculture came to administer and enforce the Mobilized under the NWC, this coalition of agriculture,
Swampbuster provision contained in the 1985 Farm oil, mining, utilities, and real estate developers, strove to
Bill. This disincentive program denies federal farm ‘‘work with Congress and the Administration for legislative
program benefits to producers who plant an agricultural reform of regulatory improvements to the federal wetlands
commodity on converted wetlands. Officials of the Corps permitting program’’ (10). By drafting legislation and
believe that Swampbuster has significantly reduced lobbying members of Congress, NWC seeks to protect
agriculture-related Section 404 permit applications (6). private property rights and streamline the regulatory
Environmentalists, however, have been critical of the process to offer greater regulatory flexibility.
program and the Corps’ inadequate enforcement of it (7). The White House responded with a proposal that
Nonetheless, beginning in the 1980s, falling agricultural restricted the Corps’ and EPA’s jurisdiction by narrowing
prices coupled with this shift in federal wetland policies the definition of a wetland. Environmental critics charged
helped reduce agriculture-related wetland loss. According that the Bush Administration’s 1991 manual would write
to the U.S. Department of Agriculture analysis, wetland off some 20 to 40 million acres of wetlands (11, p. 5).
conversions on agricultural lands nationwide slowed to Field tests of the manual indicated that 30–80% of land
less than 30,000 acres per year between 1987 and 1991, delineated as wetlands in the 1989 manual were excluded
down from 51,000 acres per year between 1982 and by the 1991 manual (12). The debate over a politically
1987 (8, p. 234). However, the building boom of the acceptable definition of wetlands was never resolved.
1980s increased urban wetlands conversion to 89,000 Implementing agencies returned to the 1987 wetlands
manual for the wetlands delineation process. Congress
eventually moved the wetland delineation issue out of
the political arena and into the scientific one. In 1992,
Table 1. Primary Federal Agencies Involved in Wetland Congress authorized a study of wetlands by the National
Protectiona Research Council. Released in 1995, the National Research
Council’s report, titled ‘‘Wetlands: Characteristics and
Federal Agency Role in Wetland Protection
Boundaries,’’ contained a scientifically grounded wetland
Department of Defense, Administers wetland permitting definition and more than 80 recommendations for
Army Corps of Engineers and enforcement under improving federal wetlands regulation (13). The report
Section 404 of the Clean still awaits serious attention and implementation.
Water Act Most recently, the debate has focused on the 2001
Environmental Protection Performs oversight over Corps’
Supreme Court decision, Solid Waste Agency of Northern
Agency permitting process and
enforcement
Cook County v. U.S. Army Corps of Engineers [121 S.Cf.
Department of the Interior, Reviews Section 404 permit 675]. In this case, a county solid waste agency sought
Fish and Wildlife Service applications, makes permission to develop a disposal site on 17 acres of land
recommendations to the that contained isolated, seasonal ponds used by migratory
Corps, and promotes birds. By a 5–4 decision, the Court denied CWA protection
voluntary restoration to isolated, nonnavigable ponds and wetlands contained
programs within a single state under the Migratory Bird Rule. In
Department of Agriculture, Manages voluntary programs to doing so, the Court ‘‘reversed elements of more than 15
Farm Service Agency help protect and restore
years of federal jurisdiction when it ruled that the federal
wetlands associated with
government overstepped its authority in regulating certain
farmland
Department of Agriculture, Delineates wetlands under farm isolated wetlands’’ (14, p. 2). Regional offices of the Corps
Natural Resources bill legislation and provides and EPA were then instructed to withhold clean water
Conservation Service technical and financial protection from those types of isolated waters and to seek
assistance to landowners to guidance from headquarters in determining whether to
restore and enhance wetlands protect other small intrastate streams and waterways
Department of Commerce, Initiates wetland restoration that enjoy federal protection (15). Both environmental and
National Oceanic and activities associated with industry representatives agree that there is a need for
Atmospheric marine ecosystems congressional guidance following this ruling. Of course,
Administration
both sides have radically different notions of what that
a
Reference 5. response should entail.
 WETLANDS POLICY IN THE UNITED STATES: FROM DRAINAGE TO RESTORATION
THE MODERN DEBATE: WETLANDS CONSERVATION
AND RESTORATION
Today, the wetlands debate has been framed by a
‘‘no-net-loss’’ goal. Adopted from the National Wetlands
Policy Forum, a task force convened by the Conservation
Foundation at the request of the EPA and headed by New
Jersey Governor Thomas H. Kean in 1988, ‘‘no-net-loss’’
means conservation of wetlands whenever possible and
that acres converted should be offset through restoration
and creation, thereby, maintaining or increasing the
wetland resource base (16). Every president since George
H. Bush has adopted this approach, and in doing so, the
debate has been framed around acreage. As such, it is
the numbers that matter. Wetland values and functions
become less important. Recently, the National Academy of
Science’s (NAS) Committee on Mitigating Wetlands Loss
reported that it is ‘‘not convinced that the goal of no net loss
for permitted wetlands is being met for wetland functions’’
(17, p. 3). According to the NAS, insufficient data exists to
determine if the goal was even being met.
What has been determined is that wetland conversion
rates have dropped during from 458,000 acres per year
during the 1950s–1970s to 58,500 acres per year in
the 1980s–1990s. This amounts to an 80% reduction
in average annual loss from the prior decade (18, p.
9). Figure 1 displays wetlands loss from the 1950s to
the 1990s. Conservation programs have helped stem
wetland loss nationally. Recent reauthorization of the
North American Wetlands Conservation Act where the
federal government matches donations for state wildlife
agencies, conservationists, landowners, and sportsmen
demonstrates this. So too does reauthorization of the
Wetlands Reserve Program, which provides financial
incentives to farmers to restore and protect wetlands
through long-term easements. Congress has elected the
conservation approach as opposed to amending the Section
404 permit process. Employing incentive programs like
these, as opposed to regulation, are understandably
more popular with the public than the Section 404
permit process.
By focusing on wetlands acreage framed by the ‘‘no-
net-loss’’ goal, restoration strategies have emerged as the
preferred policy solution, attempting to reconcile economic
growth and wetland protection. Restoration efforts are
becoming increasingly popular as a strategy to mitigate
500,000
400,000
300,000
Acres
200,000
100,000
0
1950s–1970s 1970s–1980s 1980s–1990s
Decades
Figure 1. Wetlands loss figures for the mid-1950s to mid-1970s,
mid-1970s to mid-1980s, and 1986–1997 (18).
693
wetland losses and counter past development. Restoration
of the Florida Everglades, a joint federal–state effort at
an estimated cost of $8 billion over the next two decades,
represents the largest ecological restoration project
ever attempted. Despite restorative successes of coastal
areas (19), however, some scientists are increasingly
concerned that hard to create wetlands like bogs and
fens are being replaced with common, easy to create
wetland types such as cattail marshes (20). Moreover, the
National Research Council reports that restored wetlands
often cannot re-create natural levels of biodiversity and
sustainability (21). In the coming years, the debate over
wetlands protection is likely to focus as much on the
quality of wetlands as it does now on the quantity of
acres restored.
CONCLUSION
In summary, by the 1960s and 1970s, environmental
values challenged wetland drainage and destruction
practices. Passage of the Clean Water Act marked the
first significant federal efforts at wetland protection.
Wetland management during the past 30 years has been
characterized by litigation, an expansion of federal agency
involvement, polarization of interest, and a politicization
of science. We have not yet achieved the ‘‘no-net-loss’’
goal, but conservation programs and restoration efforts
have helped to stem wetland loss nationally. Will they be
enough to protect the wetlands that remain in the United
States? Only time will tell.
BIBLIOGRAPHY
1. O’Hagan, K. (1991). Pumping with the intent to kill: Evading
wetlands jurisdiction under Section 404 of the clean water
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2. Feldman, D.L. (1991). Water Resources Management: In
Search of an Environmental Ethic. Johns Hopkins University
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3. Gerlak, A.K. (1996). Federal wetland policy: Is this policy all
wet? In: At the Nexus: Science Policy. D.L. Soden (Ed.). Nova
Science, Comack, NY.
4. Clarke, J.N. and McCool, D.C. (1996). Staking Out the
Terrain: Power and Performance Among Natural Resource
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5. U.S. General Accounting Office. (1998). Wetlands Overview:
Problems with Acreage Data Persist. General Accounting
Office, Washington, DC.
6. Zinn, J. and Copeland, C. (1996). Agricultural Wetlands:
Current Program and Legislative Proposals. CRS Report for
Congress 96-35 ENR, The Library of Congress, Congressional
Research Service, Washington, DC.
7. Environmental Working Group. (1995). ‘‘Taxing’’ the Tax-
payer: Wetlands and Farm Subsidies in Perspective. Environ-
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8. Heimlich, R.E. (1994). Costs of an agricultural wetland
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9. Heimlich, R.E., Wiebe, K.D., Claassen, R., Gadsby, D., and
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11. Keefer, M. (1991). Wetlands: Going, Going, Going. National
Wildlife Federation Leader, Reston, VA.
12. Environmental Defense Fund and World Wildlife Fund.
(1992). How Wet is a Wetland? The Impacts of the Proposed
Revisions to the Federal Wetlands Delineation Manual.
Environmental Defense Fund and World Wildlife Fund, New
York and Washington, DC.
13. National Research Council. (1995). Wetlands: Characteristics
and Boundaries. National Academy Press, Washington,
DC.
14. National Wetlands Newsletter. (2001). The SWANCC Deci-
sion. Environmental Law Institute, Washington, DC, Jan-
uary–February.
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tion to Reaffirm Commitment to No Net Loss of Wetlands and
Address Approach for Protecting Isolated Waters in Light of
Supreme Court Ruling on Jurisdictional Issues. Environmen-
tal Protection Agency, Washington, DC.
16. The Conservation Foundation. (1988). Protecting America’s
Wetlands: An Action Agenda—The Final Report of the
National Wetlands Policy Forum. Conservation Foundation,
Washington, DC.
17. National Research Council. (2001). Compensating for Wetland
Losses Under the Clean Water Act. National Academy Press,
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18. Dahl, T.E. (2000). Status and Trends of Wetlands in the
Conterminous United States, 1986–1997. United States
Department of the Interior, Fish and Wildlife Service,
Washington, DC.
19. Kukoy, S.J. and Canter, L.W. (1995). Mitigation Banking as
a Tool for Improving Wetland Preservation via Section 404
of the Clean Water Act. The Environmental Professional 17,
Gainesville, FL.
20. Hunt, R.J. (1996). Do Created Wetlands Replace the Wetlands
that are Destroyed. U.S. Department of the Interior, U.S.
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21. National Research Council. (2001). Compensating for Wetland
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