The Clean Water Rule: defining the scope of the Clean Water Act

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Previous articleNext article FreeBridges*The Clean Water Rule: defining the scope of the Clean Water ActCharles P. HawkinsCharles P. Hawkins1Department of Watershed Sciences, the Western Center for Monitoring and Assessment of Freshwater Ecosystems, and the Ecology Center, Utah State University, Logan, Utah 84322-5210 USA2E-mail addresses: [email protected] Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreWhat waters are subject to federal regulatory protection by the US Clean Water Act (CWA)? Over the 43 y since passage of the CWA (formally the 1972 Federal Water Pollution Control Act [33 U.S.C. §§1251–1387]) little clarity and less consensus has emerged regarding this fundamental question. However, on 29 June 2015, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (ACE) published the Clean Water Rule (https://federalregister.gov/a/2015-13435) to clarify which waters are subject to CWA protection. Publication of the Clean Water Rule created immediate, passionate political debates, largely focused on whether EPA and the ACE overstepped their jurisdiction. Within 5 d of publication of the rule, attorneys general from 31 states planned to ask EPA to delay implementation of the Clean Water Rule for at least 9 mo (http://www.courthousenews.com/2015/08/03/thirty-one-states-fight-clean-water-rule.htm). As of 10 August 2015, 13 states had asked a federal judge to block the rule (http://www.mercurynews.com/breaking-news/ci_28615224/13-states-want-judge-block-new-federal-water). A Google® search on 13 August 2015 based on the keywords "Clean Water Rule" and "lawsuits" produced 22,500 results. As of 8 September, when this paper went to press, the rule was in effect in 37 states, and was stayed by preliminary injunction in 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming) (http://www2.epa.gov/cleanwaterrule/clean-water-rule-litigation-statement). In bright contrast to the well publicized, negative political reaction, the aquatic resource science and management communities appear to largely support the rule (e.g., http://www.freshwater-science.org/Policy/files/SFS_WOTUS_EPA-HQ-OW-2011-0880.pdf).In this BRIDGES cluster, Laurie Alexander and Robert Adler describe the scientific evidence and legal history and reasoning, respectively, that led to the Clean Water Rule. Alexander (2015) describes the exhaustive review of the scientific literature conducted by the US EPA Office of Research and Development, which informed specific policy recommendations in the rule. Adler (2015) puts the new rule in context of the legal history of the CWA, how science has informed the evolution of what waters are considered to be subject to the CWA, and what legal challenges the Clean Water Rule may face in the future.The CWA is one of the most important pieces of environmental legislation enacted in the USA. Its original and continuing goal is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters". However, the CWA has jurisdiction over only a subset of the aquatic ecosystems in the nation. Jurisdictional waters were originally identified based not on scientific concepts but on legal doctrine that defined which waters were subject to federal regulation under the Commerce Clause of the Constitution and which ones were subject to state laws (Adler 2013, 2015). Navigability was the original threshold used to identify waters subject to federal jurisdiction. A water body was defined as navigable if it was either: 1) subject to the ebb and flow of the tide; 2) presently used, used in the past, or susceptible for use to transport interstate or foreign commerce; or 3) navigable in fact (e.g., the Great Salt Lake). However, starting soon after the passage of the CWA, disagreements occurred regarding the scope of the CWA. Many of these disagreements focused on interpretation of navigable as it applied to the CWA (Adler 2015). As a result, the criteria used to define which waters constitute the nation's waters have evolved over time. Three relatively recent Supreme Court rulings may have brought more confusion than clarity to the definition of what are and are not CWA jurisdictional waters (Adler 2015). The current criterion for inclusion is whether waters have a significant nexus with traditional navigable or interstate waters, but significant nexus was not defined.Legal definitions regarding what waters are subject to the CWA are important to aquatic ecosystem protection and restoration because jurisdictional status can influence which waters resource and regulatory agencies monitor and how monetary resources are allocated among waters in need of restoration. The new rule more clearly identifies those water bodies for which the regulatory mechanisms of the National Pollutant Discharge Elimination System (CWA §402, which regulates point-source discharges) and CWA §404 (which regulates dredging and filling) apply. It also identifies those waters that are subject to CWA §§303 (requires states to set standards and restore impaired waters) and 305(b) (reporting of the condition of all waters of the USA). Federal regulatory action, whether it be protection or restoration, can be applied only to jurisdictional waters—regardless of how much ecological and water-quality value nonjurisdictional waters may possess. States can extend these or similar protections to other waters, but little consistency exists among states in either the scope or degree of protection afforded other waters. The past inconsistent protection of nonnavigable waters by both EPA and the states is of concern given that headwaters and small water bodies in general are ecologically valuable in their own right and that they influence the biological, chemical, and physical integrity of navigable waters (Lowe and Likens 2005, Meyer et al. 2007, Downing 2010, USEPA 2015). The high biodiversity found in small aquatic habitats is especially important given that headwater streams constitute the vast majority of stream length on Earth (Downing et al. 2012) and small ponds and lakes represent the majority of lentic ecosystem area (Downing et al. 2006). Limiting the CWA to those waters that are strictly navigable could exclude waters that harbor significant biodiversity and functional value from federal regulatory protection.Recent estimates indicate that <21% of streams and rivers and 56% of lakes in the conterminous US are in good biological condition (USEPA 2010, 2013). Initial estimates for streams and rivers indicate conditions may be becoming worse rather than improving (USEPA 2013). The primary identified stressors or pollutants associated with degraded biological conditions include physical habitat alteration, excessive levels of nutrients, excessive fine sediments, and other pollutants (USEPA 2010, 2013). The fact that many of the waters included in the National Aquatic Resource Surveys are not navigable waters indicates that nonnavigable waters generally have not been adequately protected in the past. Researchers and resource managers expend considerable effort developing and refining the science of environmental protection and restoration. If the intent of the CWA was to be inclusive and protect and restore all types of aquatic ecosystems to the fullest extent permissible under the Commerce Clause of the Constitution (Adler 2013, Doremus and Tarlock 2013), the Clean Water Rule is a critical step toward realizing that goal.AcknowledgementsThis BRIDGES cluster was motivated by a symposium held 31 March 2015 on Water Body Connectivity and the Clean Water Act, part of Utah State University's annual Spring Runoff Conference. I thank Walter Baker, Director of the Utah Division of Water Quality, for discussions regarding the challenges states may face in implementing the Clean Water Rule. Robert Adler, Laurie Alexander, Allison Roy, and Ashley Moerke provided constructive criticism of different drafts of this paper.Notes*BRIDGES is a recurring feature of FWS intended to provide a forum for the interchange of ideas and information relevant to FWS readers, but beyond the usual scope of a scientific paper. Articles in this series will bridge from aquatic ecology to other disciplines, e.g., political science, economics, education, chemistry, or other biological sciences. Papers may be complementary or take alternative viewpoints. Authors with ideas for topics should contact BRIDGES Co-Editors, Ashley Moerke ([email protected]) and Allison Roy ([email protected]).Literature CitedAdler, R. W. 2013. The decline and (possible) renewal of aspiration in the Clean Water Act. Washington Law Review 88:759–812.First citation in articleGoogle ScholarAdler, R. W. 2015. US Environmental Protection Agency's new Waters of the United States Rule: connecting law and science. Freshwater Science 34:1595–1600.First citation in articleLinkGoogle ScholarAlexander, L. C. 2015. Science at the boundaries: scientific support for the Clean Water Rule. Freshwater Science 34:1588–1594.First citation in articleLinkGoogle ScholarDoremus, H., and A. D. Tarlock. 2013. Can the Clean Water Act succeed as an ecosystem protection law? Journal of Energy and Environmental Law 4:46–66.First citation in articleGoogle ScholarDowning, J. A. 2010. Emerging global role of small lakes and ponds: little things mean a lot. Limnética 29:9–24.First citation in articleCrossrefGoogle ScholarDowning, J. A., J. J. Cole, C. A. Duarte, J. J. Middelburg, J. M. Melack, Y. T. Prairie, P. Kortelainen, R. G. Striegl, W. H. McDowell, and L. J. Tranvik. 2012. Global abundance and size distribution of streams and rivers. Inland Waters 2:229–236.First citation in articleCrossrefGoogle ScholarDowning, J. A., Y. T. Prairie, J. J. Cole, C. M. Duarte, L. J. Tranvik, R. G. Striegl, W. H. McDowell, P. Kortelainen, N. F. Caraco, J. M. Melack, and J. M. Middelburg. 2006. The global abundance and size distribution of lakes, ponds, and impoundments. Limnology and Oceanography 51:2388–2397.First citation in articleCrossrefGoogle ScholarLowe, W. H., and G. E. Likens. 2005. Moving headwater streams to the head of the class. BioScience 55:196–197.First citation in articleCrossrefGoogle ScholarMeyer, J. L., D. L. Strayer, J. B. Wallace, S. L. Eggert, G. S. Helfman, and N. E. Leonard. 2007. The contribution of headwater streams to biodiversity in river networks. Journal of the American Water Resources Association 43:86–103.First citation in articleCrossrefGoogle ScholarUSEPA (US Environmental Protection Agency). 2010. National Lakes Assessment: a collaborative survey of the nation's lakes. EPA 841-R-09-001. 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