Are Watershed-Based Approaches Legal and Do They Work?

Water quality has improved substantially since passage of the Clean Water Act, due largely to the successes of point source permitting and the municipal grants program, which collectively reduced pollutant loadings from all major industrial and municipal wastewater dischargers over the last 35 years. Today the water community faces increasingly complex water quality challenges, particularly from non-point source pollution, emerging contaminants of concern, and the effects of global climate change. In the absence of major changes to the Clean Water Act, a variety of tools and approaches using existing legal authorities have been developed and tested in recent years to respond to these complex water quality problems. One approach getting much attention is the U.S. Environmental Protection Agency's policy to promote the concept of watershed-based management. This approach includes use of established Clean Water Act programs such as the Total Maximum Daily Load program, the Non-Point Source Management Program, and Area-Wide Water Quality Management Planning, along with policy innovations such as watershed-based National Pollutant Discharge Elimination Program permitting and water quality trading.This article explores the current regulatory and policy frameworks for watershed-based water quality management as well as the legal and practical challenges regulators and the regulated community face in implementing watershed-based management approaches. The article then examines a series of case studies showing how watershed-based management is being employed in both simple and complex watersheds to improve water quality and how the affected parties are using existing laws and policies to implement new approaches. The article closes with some observations regarding the effectiveness of these approaches in utilizing existing legal authorities and improving water quality.