This post was originally published by the American College of Environmental Lawyers. Reprinted with permission.
A global movement is underway to protect 30 percent of the Earth's lands and waters by 2030. More than seventy countries support this goal to combat climate change and slow the pace of species extinction, both of which are accelerating at an unprecedented rate. The two threats are closely intertwined. The greatest drivers of species extinction are climate change and habitat loss; by the same token, the loss of intact, functioning habitat and biodiversity diminishes the capacity for climate resilience.
In the United States, one of President Biden's earliest executive orders, issued in his first week in office, established a goal to conserve at least 30 percent of U.S. lands and water and 30 percent of U.S. ocean areas by 2030. The order proclaims an "all of government" approach to strengthening climate resilience and biodiversity while promoting environmental justice and economic growth.
As laudable as it is, the 30 x 30 concept and the Administration's 30 x 30 action plan, known as "America the Beautiful," overlook a critical component of the conservation goal — they pay virtually no attention to freshwater ecosystems.
Is this an inadvertent oversight? Or does it reflect a misguided notion that protecting land will protect wetlands, streams, rivers, and lakes? Or is there a political explanation?
Overlooking the need for freshwater conservation cannot be due to a lack of relevance. Although they cover less than 1 percent of Earth's surface, freshwater rivers, lakes, and wetlands support an extraordinary diversity of life, providing a home for approximately one-third of vertebrate species and 10 percent of all species. Wetlands alone support more than one-third of the federally listed species in the United States. They also serve as massive storehouses of carbon. Lakes, too, sequester carbon in their sediments.
Freshwater ecosystems are among the most endangered ecosystems in the world due to altered precipitation patterns and temperature regimes, over-appropriation and diminished stream flows, pollution, wetlands destruction, non-native species, and hydrologic modifications. Freshwater biodiversity is declining at roughly twice the rate of marine or terrestrial biodiversity. Fish and amphibians face the highest rates of extinction in the world.
The importance of freshwater ecosystems to biodiversity and climate resilience is indisputable, and the need for interjurisdictional management of these boundary-spanning resources is clear as well. Why, then, is freshwater conservation missing from the 30 x 30 initiative?
Sustainable water management is complicated, even more so than sustainable land management. Complexity arises from extreme institutional fragmentation and the (literally) fluid nature of freshwater. So does controversy. The implications of 30 x 30 for land management has already drawn fire from property rights proponents who fear a federal "land grab." When it comes to water resources, tensions run even higher.
The hallmarks of water law include settled expectations of water users, states' rights, and extremely high institutional fragmentation, along with fierce territorialism. Jurisdictional barriers to holistic watershed management exist both horizontally — among federal agencies, in particular — and vertically, among federal, tribal, state, and local authorities.
If the Biden Administration were to highlight freshwater conservation deficiencies and potential legal reforms, it may be akin to touching the political third rail, which could jeopardize the entire 30 x 30 initiative. Since the advent of water law, particularly in the western United States, proposals for almost any type of reform have been controversial, and the constituency supporting reform has been limited while the opposition — typically irrigators and other water users — has been vocal and highly motivated. As a result, over-appropriation and depletion have become a perpetual problem in many watersheds, in some cases, causing the collapse of entire aquatic and riparian communities.
Given the intractable nature of interests in freshwater, what realistic measures can the federal government take to conserve 30 percent of our freshwaters by 2030?
Rather than advocating for a significant overhaul of our nation's water laws, there are a number of more modest reforms and implementation improvements that may move the nation closer to its 30 x 30 goal. At the federal level, several water-centric statutes are obvious contenders: the Clean Water Act (CWA); the Wild and Scenic Rivers Act (WSRA); and the Federal Power Act. This blog flags a few areas that deserve attention; a more in-depth article is forthcoming later this year.
As for the CWA, impediments to achieving the statute's objective of chemical, biological, and physical integrity include: (1) a narrow and unpredictable definition of "waters of the U.S."; (2) the lack of controls over nonpoint source pollution, including agricultural activities and dams; and (3) the failure to protect adequate stream flows to maintain aquatic life. Each of these could be addressed through agency action.
The WSRA would be more robust if a wider range of river segments were designated, including segments that require restoration to attain "outstandingly remarkable values" (ORVs). In addition, managing agencies could do more to regulate incompatible land uses within the river corridor to protect ORVs, and they could recognize a wider range of ORVs, including biodiversity.
The Federal Power Act would advance 30 x 30 goals more effectively if dam relicensing decisions were focused on promoting watershed protection in a systemic fashion. Although the Act requires consideration of the environmental consequences of relicensing, which has occasionally made dam removal a cheaper alternative than continued operations, comprehensive watershed planning has never been taken seriously.
None of these changes will be easy, but change is imperative. Despite the political capital needed to move water management reforms forward, the 30 x 30 initiative can only scratch the surface of the climate-biodiversity crisis if it fails to address freshwater conservation in a meaningful way.
