In his scholarly works, Professor Dave Owen often starts by telling the story that everyone knows about a certain central doctrine of environmental law, and then uses empirical data to meticulously pick apart why that narrative that everyone knows is right is actually wrong. In so doing, he’s not just trying to skewer sacred cows; instead, he aims to help legal practitioners use the arsenal of environmental (and other kinds of law) more judiciously. So, for example, in “Regional Federal Administration” (UCLA Law Review 2016), Professor Owen examines Army Corps of Engineer decisions implementing the Clean Water Act to show how criticisms of centralized Washington bureaucracy miss the mark—because “centralized” decisions are actually made and implemented by federally employed bureaucrats in localities far from the D.C. office headquarters. In “Critical Habitat and the Challenge of Regulating Small Harms” (Florida Law Review 2012), Professor Owen interviews U.S. Fish & Wildlife Service staff and combs though a database of 4,000 Endangered Species Act “biological opinions” to find that what everyone knows—the Act’s powerful protection of critical habitat for endangered species is an inflexible hammer proscribing development in favor of environmental protection—is actually untrue: critical habitat protections are regularly circumvented by cautious agency staff, leading to gradual, incremental degradation of species protections.
In his new article, “Little Streams and Legal Transformations” (Utah Law Review 2017), Professor Owen details the legal evolution and actual implementation of Section 404 of the Clean Water Act, which requires anyone discharging material into the “waters of the United States” to apply for and comply with a permit issued by the Army Corps of Engineers. While everyone knows this requirement is about protecting and restoring wetlands, what we don’t know is how the requirement really advances environmental protection for “little streams,” which are crucial for purifying water, recycling nutrients, and protecting biodiversity. And the story of little streams counters the now familiar, “everyone knows” doom-and-gloom narratives of how environmental law, which once had such bright promise, has now devolved into “gridlock and adversarialism.”
Instead, Professor Owen traces how the evolution of the Clean Water Law’s protections for little streams shows “incremental, ongoing, and often agency-driven progress toward turning the sweeping mandates of environmental statutes into real, and workable, protections.” The Army Corps has evolved from builder of waterworks to protector of clean water—or has evolved to straddle both roles, protecting a wider array of sources under the aegis of “waters of the United States.” The Corps hired biologists, derived creative ways to mitigate environmental impacts, spawned a cottage industry of businesses that profited from providing ecological mitigation services, and have extended Clean Water Act protections from wetlands to the small streams that provide so many ecological benefits. And Corps officials have gradually improved its environmental compliance without new congressional mandates or presidential proclamations commanding them to do so.
Professor Owen concludes that his case study on little streams reveals that environmental protection, rather than stagnating as Congress has become gridlocked, sometimes moves along and advances with improved efficiency in unpredictable ways in locales far from D.C., through agencies whose primary missions may lie elsewhere yet whose ministers take environmental protection seriously, even in Red states, with the (sometimes grudging) support of regulated industries, and under administrations publicly hostile to environmental goals. That doesn’t mean all is hunky dory with implementation of the Clean Water Act (and other cornerstone environmental laws), and it doesn’t mean that our current federal government will not undermine the progress we’ve achieved; environmental lawyers and citizens must remain vigilant. Still, as Professor Owen writes, when we portray environmental law as a series of titanic courtroom battles with zero-sum outcomes, “we will not just miss the quieter evolutionary processes that occur outside the spotlight. We may fail to nurture them, or even stunt their growth through our persistent emphasis on conflict.”