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Since its initial passage in 1972, the Clean Water Act has attempted to restore and protect our Nation's waters. The definition of `our Nation's waters' has undergone periodic debate and scrutiny as the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers, and the Supreme Court have defined and redefined the standards for determining CWA jurisdiction. The Supreme Court's most recent set of standards, including the "significant nexus" test, appear to both increase the uncertainty in what is regulated and increase the burden of proof for determining CWA jurisdiction. The Arid West was singled out in the most recent EPA and Corps joint jurisdictional guidance as a problematic area. Focusing on the Arid West, my dissertation evaluates the CWA jurisdiction process from three perspectives: law, policy, and science, and explores an understanding of the past, present, and potential future path of CWA jurisdiction. I analyzed Corps jurisdictional determinations from their national database. The data showed that the Corps has reversed their trend of issuing the complex and often time intensive Approved Determination to the expeditious Preliminary Determination that affords the same protection to an aquatic resource with reduced effort, and showed that the number of determinations disclaiming jurisdiction have returned historical levels. Also, the data showed that some local Corps offices do not mirror the national trends. In exploring the current state of stream research, the data showed a parallel in the timing of the Supreme Court Cases and subsequent guidance to increases in the number of articles published. In addition, the data showed that research on Arid West streams have focused on a smaller set of functions and services as compared to all potential stream functions. Using readily available tools and peer reviewed methods, I have proposed a delineation process that would bring transparency and consistency to the Approved JD process. Data showed that these tools and methods produce meaningful results in an Arid West watershed. The current CWA jurisdictional guidance can still meet the primary objective of the Act within the current policy framework and through the incorporation of existing tools into the determination process.
In June 2006 the Supreme Court, in a decision that split 4-1-4, produced a result in Rapanos v. United States that makes federal Clean Water Act jurisdiction over the wetlands, streams, and other waters of the United States confusing and uncertain for citizens, landowners, and regulators alike. Members of Congress have introduced new legislation to restore jurisdiction over many of the waters cast into doubt by the decision; and the Environmental Protection Agency and Army Corps of Engineers (the federal regulatory agencies) issued a joint guidance document in June 2007 attempting to guide their respective staffs. Numerous federal courts have attempted to apply the uncertain teachings of Rapanos as well. With the support of the Turner Foundation, and the assistance of numerous experts in wetlands science and law, the Environmental Law Institute has prepared a handbook that analyzes the case law, compiles the relevant scientific studies, and provides a set of jurisdictional checklists. The Handbook will assist anyone faced with a jurisdictional question involving a wetland or stream to understand what factors will allow them to find Clean Water Act jurisdiction.
In 1972, a bi-partisan Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” Almost fifty years have passed since Congress enacted the law and, during that time, the Supreme Court has played a significant role in the administration and evolution of the law. Since the dawn of the environmental era in the 1970's, the Supreme Court has heard more cases involving the Clean Water Act than any other environmental law. However, the manner in which the Court has analyzed the law has changed substantially over the last half century. This article reviews the shift in the Court's interpretation of the Act ver time. A review of the thirty cases that the Court has heard that involve statutory interpretation of the Clean Water Act show that the Court, during the early years of the law, focused heavily on legislative history and the purpose of the law in Section 101(a) and interpreted the law to carry out that purpose. Over time, though, the Court adopted a more textualist approach to interpreting the Clean Water Act and, beginning with the Rehnquist Court, the Court began to focus on protecting States' rights. In contrast to the Court's early opinions, opinions from the past few decades do not generally discuss the water quality protection purposes of Section 101(a) of the Clean Water Act. Instead, to the limited extent that the Court focuses on purposes of the law, it cites language in Section 101(b) of the law that discusses a Congressional policy to preserve and protect States' rights. A review of the Court's Clean Water Act cases also shows that, as the Court has moved to a more textualist approach to statutory interpretation, it has become more ideologically divided and the outcomes of the cases are more frequently those that could be characterized as anti-environmental. In addition, while early Supreme Court Clean Water Act decisions often adopted a rhetorical tone sympathizing with the government's efforts to advance public rights with limited resources, more recent decisions tend to adopt a tone of skepticism or even hostility toward government regulation.The shift in the Supreme Court's interpretation of the Clean Water Act is troubling because it coincides with Congressional disengagement in oversight of the law. In the first few decades after the Clean Water Act was enacted, Congress was vigilant in responding to Supreme Court and lower court interpretations of the law, and frequently legislated to affirm or overturn those interpretations. That is no longer the case, either for the Clean Water Act or most other environmental laws. If the Supreme Court adopts an interpretation of the law that conflicts with the water quality protection goals and purposes of the law, Congress is no longer likely to step in to correct the Court's mistake. The lack of concern demonstrated by the Supreme Court and Congress toward interpreting and applying the Clean Water Act to meet the Section 101(a) goals to protect water quality could be counterbalanced to some degree by aggressive implementation of the law by EPA and the U.S. Army Corps of Engineers to carry out those goals. Chevron deference to the agencies' interpretations of the law could provide a minor bulwark against the erosion of the law. However, courts are increasingly finding ways to avoid applying Chevron to agency decisions. Even if courts continued to aggressively apply Chevron to agency actions, though, deferring to the actions that the EPA and the Corps have taken over the past few years would not advance the water quality protection goals of the Clean Water Act because the agencies have increasingly emphasized the protection of States' rights policy of the law in Section 101(b) in their decision-making at the expense of the water quality protection goals of Section 101(a). The agencies' recent navigable waters protection rule and EPA's policy reversal regarding discharges to groundwater in the County of Maui, Hawaii v. Hawaii Wildlife Fund case are just a few examples of the agencies' policy shift.
Aldo Leopold, father of the "land ethic," once said, "The time has come for science to busy itself with the earth itself. The first step is to reconstruct a sample of what we had to begin with." The concept he expressedâ€"restorationâ€"is defined in this comprehensive new volume that examines the prospects for repairing the damage society has done to the nation's aquatic resources: lakes, rivers and streams, and wetlands. Restoration of Aquatic Ecosystems outlines a national strategy for aquatic restoration, with practical recommendations, and features case studies of aquatic restoration activities around the country. The committee examines: Key concepts and techniques used in restoration. Common factors in successful restoration efforts. Threats to the health of the nation's aquatic ecosystems. Approaches to evaluation before, during, and after a restoration project. The emerging specialties of restoration and landscape ecology.
The Clean Water Act after 37 years: recommitting to the protection of the nations' waters
The Clean Water Act (CWA) requires that wetlands be protected from degradation because of their important ecological functions including maintenance of high water quality and provision of fish and wildlife habitat. However, this protection generally does not encompass riparian areasâ€"the lands bordering rivers and lakesâ€"even though they often provide the same functions as wetlands. Growing recognition of the similarities in wetland and riparian area functioning and the differences in their legal protection led the NRC in 1999 to undertake a study of riparian areas, which has culminated in Riparian Areas: Functioning and Strategies for Management. The report is intended to heighten awareness of riparian areas commensurate with their ecological and societal values. The primary conclusion is that, because riparian areas perform a disproportionate number of biological and physical functions on a unit area basis, restoration of riparian functions along America's waterbodies should be a national goal.
When Congress enacted the contemporary form of the Federal Water Pollution Control Act in 1972, it used the same statutory formula to trigger both of the Act's two permit programs. That decision was never completely comfortable, and over time it has become clear that, although the two permit programs serve the same regulatory goal of improving water quality, they otherwise resonate in two very different complexes of legal values. The U.S. Supreme Court repeatedly has found the Section 404 complex particularly troublesome, holding that a broad definition of “waters of the United States” in this program threatens to infringe both states' Tenth Amendment prerogatives and landowners' private property rights. Moreover, this narrowing of jurisdictional “waters of the United States” is likely to continue into the 2022-2023 Supreme Court term through the case of Sackett v. EPA.The intense legal and political focus on “waters of the United States” since at least the Court's 2006 decision in Rapanos v. United States has obscured the fact that Clean Water Act jurisdiction depends on five elements, not just that one, that must be evaluated together. Moreover, the Supreme Court's approach to Section 402 jurisdiction in its 2020 decision in County of Maui v. Hawaii Wildlife Fund counsels the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers to take a more holistic approach to their next round of Clean Water Act jurisdictional regulations. This more holistic approach offers two immediate benefits: a highlighting of the many existing exemptions from Section 404 and a simplification of jurisdictional analyses. However, in the wake of the anticipated outcome of Sackett v. EPA, the holistic approach can also keep Section 402 jurisdiction relatively broad.
The Clean Water Act after 37 years : recommitting to the protection of the nations' waters : hearing before the Committee on Transportation and Infrastructure, House of Representatives, One Hundred Eleventh Congress, first session, October 15, 2009.