In 2018, toxic algae spread from Lake Okeechobee through the State of Florida, leading to a state of emergency and costing the state over $17 million. Similar toxic algal blooms have become an annual occurrence throughout the country and highlighted the pervasive issues with the US. water supply. Inadequate and incomplete monitoring data means that state and federal managers, as well as the public, know shockingly little about water quality in most of the waters in the United States despite the fact that the Clean Water Act requires extensive water quality monitoring and assessment. Academics have widely discussed failings of the Clean Water Act, but the impacts of these failings are only beginning to show their true extent.
This Article presents an empirical study on the effects of scientific inconsistency on regulatory classifications in the Clean Water Act's Total Maximum Daily Load program by looking at waters that span state boundaries, or transboundary waters. Transboundary waters are subject to the same federal legal regime, but two different states monitor and assess their water quality. When two states monitor the same transboundary water they should find water quality measurements that are roughly in agreement. This is not the case: Only 4% of transboundary waters nationally are regulated consistently on both sides of a state boundary, indicating a striking degree of scientific and regulatory inconsistency among states. This inconsistency undermines a key goal of the Clean Water Act: to encourage uniform state regulation of water bodies.
I place this finding in the landscape of proposed solutions to the Clean Water Act's failings. I argue that solutions that focus on changing the cooperative federalism relationships at the Clean Water Act's core ignore the scientific realities at the heart of the Act. Transboundary waters highlight that regulatory outcomes in the Clean Water Act are highly sensitive to small changes in scientific methodology. I explain how misconceptions of science when the Act was drafted led to this outcome and propose solutions to overcome these misconceptions.
Annie Brett, Transboundary Waters, 44 Harvard Envtl. L. Rev. 473 (2020).