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Indiana Law Journal

Document Type

Article

Publication Date

Fall 2019

Publication Citation

94 Indiana Law Journal 1613 (2019)

Abstract

Although much of the earth’s surface is covered with water, less than one percent of water is available for human use. Water is becoming progressively scarcer worldwide, as demand increases and pollution, drought, and climate change jeopardize access to clean water. The United States is no exception to that trend. Effective regulation of water supplies can blunt the impacts of water scarcity. This Article suggests that states can—and should—regulate instream flows and lake levels in their federally-mandated water quality standards, with an eye toward conserving scarce water resources. Regulating water quantity as an element of water quality is not only permissible under the Federal Clean Water Act according to Supreme Court precedent, but it is also a prudent safeguard against water shortages. This Article advocates for the adoption of numeric water quality criteria mandating minimum river instream flows and lake levels pursuant to section 303 of the Clean Water Act. It argues that numeric criteria are preferable to both narrative criteria, which may be vaguer and less susceptible to enforcement, and continued reliance on the willingness of agency staff to interpret the designated uses of water bodies and state antidegradation policies as requiring adequate amounts of water.

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