Redefining Clean Water Regulations Reduces Protections for Wetlands and Jurisdictional Uncertainty

Riley Walsh,Adam S Ward

doi:10.3389/frwa.2019.00001

Abstract

The 2015 Clean Water Rule is being enforced in 26 states, with a legal stay resulting in the prior rules being enforced in the remaining 24 states, and a proposed re-definition is open for public comment. These rules define which streams and wetlands are protected by the Clean Water Act and which require a permit for development, fill, or discharge of water and pollutants. In the Wabash River Basin, as much as 39% of wetlands in the basin would lose their current federal protections. The 2015 Clean Water Rule did not expand jurisdictional scope, but the proposed rule would significantly contract protections in our study basin. The proposed re-definition shifts uncertainty from the “significant nexus” test to definitions of stream intermittency and typical hydrologic conditions.

Highlights

Political and legal debates about the jurisdictional reach of the Clean Water Act (CWA), and which streams, lakes, and wetlands are protected as “waters of the United States” (WOTUS), have intensified during the past two decades
The remaining states have reverted to prior guidance issued by the U.S Environmental Protection Agency (EPA) and U.S Army Corps of Engineers (USACE) in a 2007 response to the 2006 U.S Supreme Court decision in Rapanos v
We studied the Wabash River Basin to demonstrate the practical implications of the evolving definitions of WOTUS in a large river basin

Summary

Introduction

Political and legal debates about the jurisdictional reach of the Clean Water Act (CWA), and which streams, lakes, and wetlands are protected as “waters of the United States” (WOTUS), have intensified during the past two decades. Since Congress enacted the CWA in 1972, courts and agencies have attempted to clarify the vague statutory definition of “waters of the United States.” Critically, the definition expanded CWA jurisdiction beyond traditionally navigable waters to include their tributaries and connected wetlands.

Results

Conclusion