44 Colum. J. Envtl. L. 1 (2019)

handle is hein.journals/cjel44 and id is 1 raw text is: 











Coevolution of Law and Science:


        A Clean Water Act Case Study

                         Robert W. Adler*

I. Introduction.        .............................    ......... 2
  A.  Science and Regulation.    .................      ........... 2
  B.  Competing  Models  of Science and Regulation .       ..........5
II. The   Role    of   Biological  Water    Quality    Criteria
    (Biocriteria) in the Clean Water Act ..................10
  A.  The Statutory Background     ...........................  10
     1. CWA   Statutory Objective and Subsidiary Goals ..............11
     2. The Qualified Discharge  Ban.....................12
  B.  Water Quality Standards     ..................     .........15
     1. Water Quality Standards Generally.      .......   ..........15
     2. Forms  of Water Quality Standards ..................17
     3. Biological Water Quality Criteria (Biocriteria) ............ 18
  C.  Implementation  of Water  Quality Standards        ............23
III. Biocriteria As a Case Study in the Coevolution of Law and
   Science .............      .     ....................   ..... 27
   A. Preface: Scientific Knowledge and Regulatory Knowledge  ... 28
   B. Coevolution  of  Scientific Knowledge   and  Regulatory
      Knowledge  in the Biocriteria Program      ................ 31
      1. Deciding Whether to Authorize  or Require Regulatory
        Action ..........     ..................        ........... 32
     2. Defining Regulatory Goals..................... 36
     3. Determining Regulatory Means.................... 41
     4. Promoting Scientific and Regulatory Innovation.............47
       a. Scientific Innovation  ............................... 48
       b. Regulatory Innovation    ............................. 51
     5. Defining (and Redefining) Regulatory Scope  and Focus ... 53


* Jefferson B. and Rita E. Fordham Presidential Dean, Distinguished Professor of Law,
University of Utah, S.J. Quinney College of Law. This article was funded in part by the Albert
and Elaine Borchard Excellence in Teaching and Research Fund. The article was inspired
by an invited presentation at a session of the 2018 meeting of the Society for Freshwater
Science focusing on biological water quality standards (biocriteria). Michael Hutchings
and Brian House provided invaluable research assistance.


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