ENVIRONMENTAL IMPACT MITIGATION UNDER THE CLEAN WATER ACT AND THE NATIONAL ENVIRONMENTAL POLICY ACT: THE CASE OF TWO FORKS DAM1

ABSTRACT: The role of environmental mitigation in permitting decisions under Section 404 of the Clean Water Act and the National Environmental Policy Act is examined, addressing the extent to which compensatory mitigation is acceptable. The role of mitigation is examined both generically and specifically: first in the requirements of the Clean Water Act and NEPA, and then in the case study of the proposed Two Forks Dam. In both cases, the paper describes dual purposes of environmental protection legislation and mitigation: to protect the biophysical environment and maintain associated human values. Mitigation is found to be sometimes necessary and acceptable as compensation for unavoidable impacts of project development. However, the Two Forks case exemplifies that compensatory mitigation has also been employed as a mechanism to facilitate project development when practicable alternatives entailing less environmental impact are available. Acceptance of compensatory mitigation in such cases violates both the Guidelines of the Clean Water Act and the intent of that Act and NEPA to protect the biophysical environment and human welfare. A recent memorandum of agreement between the Corps and the EPA clarifies this policy, and suggests that permit applications which rely on compensatory mitigation when impacts are available may be denied.     

A river might run through it again: criteria for consideration of dam removal and interim lessons from California

Resource managers are increasingly being challenged by stakeholder groups to consider dam removal as a policy option and as a tool for watershed management. As more dam owners face high maintenance costs, and rivers as spawning grounds for anadromous fish become increasingly valuable, dam removal may provide the greatest net benefit to society. This article reviews the impact of Endangered Species Act listings for anadromous fish and recent shifts in the Federal Energy Regulatory Commission's hydropower benefit-costs analysis and discusses their implications for dam removal in California. We propose evaluative criteria for consideration of dam removal and apply them to two case studies: the Daguerre and Englebright Dams on the Yuba River and the Scott and Van Horne Dams on the South Eel River, California.     

The Use of an Ecologic Classification to Improve Water Resource Planning in New Zealand

The Resource Management Act (RMA) legislates the management of most natural resources in New Zealand. The RMA invokes ecosystem-based management by requiring that regulation be based on managing the effects of resource according to “the life supporting capacity” of the environment. The management of water resources under the RMA is carried out at the regional level by regional councils. Regional councils can develop regional water plans to establish objectives and criteria for water management. Regional water planning under the RMA has been problematic, and regional plan objectives developed under the RMA have been criticized as too broad and not sufficiently quantified. As a consequence, many resource users are unconvinced of the need for the regulatory criteria promulgated by plans, whereas other groups are concerned that the environment is inadequately protected. This article proposes that a lack of ecologically relevant management units has prevented regional water plans from fulfilling their intended function under the RMA. Then it introduces the use of River Environment Classification as a means of defining units for assessment and management, and provides three case studies that demonstrate its potential to support regional water management planning. The discussion shows that the specificity of regional assessments can be increased if ecologic variation is stratified into distinctive units (i.e., units within which variation in the characteristics of interest is reduced) as part of the assessment process. The increased specificity of the assessments increases the possibility that regional objectives and criteria for water management can be derived that are quantitative and justifiable and that provide certainty for stakeholders. The authors conclude that greater choice and meaning can be generated in regional planning processes if regional variation in ecologic characteristics is stratified using a classification, and if classes are used as units for assessment and management.     

STATE WATER QUALITY CONTROL PROGRAM IN ARIZONA1

ABSTRACT: Arizona's water pollution control program is based on authorties of Arizona Revised Statutes and Public Law 92–500, the Federal Water Pollution Control Act Amendments of 1972. The primary areas of this program are monitoring, facility inspections, plan review, planning, discharge permits and grants for the construction of publicly-owned waste water treatment facilities. The discharge permit program deals with control of point-source discharges and is administered by the United States Environmental Protection Agency. The planning and construction grants programs are administered by the State Water Quality Control Council and are implemented by the Bureau of Water Quality Control, which serves as staff to the Council. There are several challenges that face the State in this program. First is the adaptation of the “eastern law” to deal with Arizona's water quality problems. Second is to address problems caused by a long history of “laissez-faire” environmental quality management. Third is a mutual cooperation and coordination among the many entities involved in water resources management. Areas of particular interest in the State's program is the process setting water quality standards and the involvement of people of diversified backgrounds in the field of areawide planning under Section 208 of the Federal Water Pollution Control Act, which is primarily concerned with non-point sources of water pollution.     

MONTANA'S EXPERIENCE IN RESERVING YELLOWSTONE RIVER WATER FOR INSTREAM BENEFICIAL USES - THE RESERVATION DECISION1

ABSTRACT: The Yellowstone River in Montana produces an abundant supply of high quality water, but in the early 1970's, the specter of mushrooming energy development in the drainage with its attendant demands for large volumes of water prompted this state to initiate steps to protect existing users and to control future water uses. A Water Use Act was passed in 1973, and a moratorium was subsequently placed on the granting of new permits for major diversion. During this moratorium, various governmental entities were given the opportunity to request the reservation of water for future beneficial uses, including instream purposes. An earlier paper described the reservation applications that were received by the state, and it also summarized the legal framework of the reservation process in Montana. Since that time, the responsible state agency has had the opportunity to review the reservation requests, and its final decision in this regard was announced in December of 1978. This paper describes the details of this decision. Basically, an attempt was made to preserve the integrity of the stream while also strengthening its agricultural uses. In addition, a portion of the flow was not earmarked which will provide some flexibility in reacting to future demands.     

THE COSTS OF CONFLICTING ENVIRONMENTAL POLICY: A CASE STUDY IN MILWAUKEE1

ABSTRACT: The history of the Milwaukee water pollution abatement program is examined as a case study to investigate the costs of conflicting environmental policy. The recent U.S. Supreme Court decision concerning the Milwaukee case is described as a milestone in U.S. water pollution abatement policy which will help preclude the type of environmental policy conflict which has been found to be so costly to Milwaukee. The implications to U.S. water pollution abatement policy of the 13-year history of conflict in Milwaukee are presented.     

Structuring cooperative behavior under the National Environmental Policy Act of the United States

A trend is presently under way to streamline the compliance requirements of the National Environmental Policy Act of the United States through cooperative assessment procedures. Since the law was enacted in 1970, however, participants in the assessment process have tended to settle disagreements by adversarial rather than cooperative means. This study focuses on a highly acclaimed environmental assessment procedure undertaken by the U.S. Steel Corporation for its proposed $4.0 billion Lakefront Steel Plant. Survey research data were gathered to measure the underlying management philosophy perceived by interorganizational representatives, who attended a series of Technical Team meetings designed to coordinate the assessment effort and to open communication channels. A social psychological scale of behavioral dimensions was adapted from Likert to define the composition and the extent of cooperation at these meetings. A newly constructed scale was used to measure the quantity and quality of representation by each of the major organizations involved. Informal interviews were conducted with project participants to obtain further insight into member interaction. Results indicate that democratic problem solving was in evidence but also suggest a preference by respondents for improved procedures. The paper outlines areas of concern voiced by respondents and offers the means for improving the operating procedures of similar interorganizational environmental assessments.     

Guidelines and Techniques for Improving the NEPA Process

/ The Council on Environmental Quality's (CEQ's) principal aims in implementing the National Environmental Policy Act (NEPA) are (1) to reduce paperwork, (2) to avoid delay, and most importantly (3) to produce better decisions that protect, restore, and enhance the environment. This paper presents four strategies for improving the NEPA process along with tools that can be used to implement each strategy. The tools include guidelines for project management and problem definition, tips for acquiring existing information and identifying issues of public concern, worksheets on how to identify and analyze potential impacts on resources, ideas for enhancing NEPA documents, and a NEPA process checklist. The tools can be used at various stages of the NEPA process and provide a toolbox of guidelines and techniques to improve implementation of the NEPA process by focusing the pertinent information for decisionmakers and stakeholders. KEY WORDS: National Environmental Policy Act; NEPA; Environmental impact assessment; Ecosystem management     

EVALUATION OF CONSUMER NOTIFICATION UNDER THE SAFE DRINKING WATER ACT1

ABSTRACT: The Safe Drinking Water Act of 1974 as amended in 1986 requires that consumers be notified when maximum contaminant levels are exceeded in their community water supply and when prescribed testing and treatment procedures are not met. A review of communication theory indicates that for the message to be effective (1) it must be received by the intended audience, (2) it must be attended to by that audience, (3) it must be understood, and (4) it must be accepted and acted upon. A review and analysis of existing research evaluating notification programs administered under the Safe Drinking Water Act indicates (1) that receipt rates have been highly, variable, (2) that attention to the message has usually not been directly assessed, (3) that levels of understanding, while variable, have usually been minimal, and (4) that acceptance, though not often directly measured, seemed higher than expected. These results, while critical of past notification programs, indicate that understanding and acceptance can be increased if receipt and attention rates are increased. The paper concludes with a series of recommendations for improving receipt and attention rates, for increasing understanding, and, most importantly, for increasing acceptance and community action for upgrading local water treatment and quality.     

Protecting endangered species under future climate change: From single-species preservation to an anticipatory policy approach

Anthropogenic climate climate change presents a unique challenge for endangered species policy and an opportunity for policy makers to develop a more predictive and robust approach to preserving the nation's biological resources. Biological and ecological reactions to shifting climate conditions and the potential feedbacks and synergistic effects of such changes may threaten the well-being of many species, particularly of those already in jeopardy of extinction. The United States Endangered Species Act of 1973 will fail to keep pace with increasing numbers of species needing protection as long as it remains focused on protecting species individually. The actmust not be abandoned, however; it holds tremendous promise for preserving biological diversity through a more proactive, anticipatory perspective. The current Endangered Species Act should be reinforced and improved by better integration of scientific expertise into habitat and community preservation listing decisions and recovery plan devlopment. Given the uncertainties surrounding long-term environmental consequences of human activities and resource use, a longer-term perspective must be integrated into all efforts to protect our biotic resources. Under appointment from the Graduate Fellowships for Global Change administered by the Oak Ridge Institute for Science and Ecducation for the US Department of Energy.