Clean Water Act
The federal Clean Water Act (CWA) is the main piece of federal legislation that protects the Nation's waters. Within the CWA, there are a number of sections that specifically address protection or regulation of wetlands. For example, Section 303 addresses water quality standards; Section 401 includes 401 Certification—to condition permits; Section 402 addresses the National Pollutant Discharge Elimination System (NPDES); and Section 404 includes the dredge and fill permitting program as well as State Assumption.
On Wednesday, May 27, 2015, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released the Clean Water Rule to clarify jurisdiction over streams and wetlands. The Association of State Wetland Managers (ASWM) has been following the rulemaking process for more than two years, and has been actively involved with other organizations in interpreting the proposed clarifications and their implications for managing wetlands, streams, floodplains and water quality.
The Clean Water Act was weakened by the US Supreme Court after the split decision known as the Rapanos and Carabell Decision in 2006, which followed another complex debate known as the SWANCC Decision in 2001. The intent of the proposed rule is to clarify jurisdiction for the protection of the nation’s water resources in response to multiple requests from multiple sectors, including the agricultural community, consultants, regulators, developers, natural resource managers and conservation groups.
The Association of State Wetland Managers will be closely following the roll-out of the Rule and will be posting news stories and other useful information about it as we receive them to our website here. To view information about the rule on the EPA website, click here.
Clean Water Rule Webinar
On Wednesday, June 17 the Association of State Wetland Managers (ASWM) held a webinar “Understanding the Final Clean Water Rule and Changes to CWA Jurisdiction Included in Senate Bill 1140” with presentations by Roy Gardner, Professor of Law and Director, Institute for Biodiversity Law and Policy and Kim Diana Connolly, Professor, Director of Clinical Legal Education, Vice Dean for Legal Skills, SUNY Buffalo Law School. Topics covered during the webinar included: an overview of changes to CWA jurisdiction under the new rule, a discussion of how the changes reflect the Carabell/Rapanos and SWANCC Supreme Court decisions and an overview of Senate Bill 1140, "The Federal Water Quality Protection Act". It was recorded and the webinar can be viewed below.
A PDF of the PowerPoint presentation is available here.
|Part 1: Introduction: Jeanne
Presenter: Roy Gardner, Professor
of Law and Director, Institute for
Biodiversity Law and Policy
|Part 2: Presenter: Kim Diana
Connolly, Professor, Director of
Clinical Legal Education, Vice
Dean for Legal Skill, SUNY
Buffalo Law School
|Part 3: Presenter: Roy Gardner,
Professor of Law and Director,
Institute for Biodiversity Law
|Part 4: Discussion||Part 5: Discussion|
Lawsuits filed in response to publication of Clean Water Rule
Texas, Louisiana and Mississippi
Ohio and Michigan
North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota and Wyoming
Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, and Wisconsin
Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence
Geographically Isolated Wetlands of the United States
ASWM has a robust collection of discussion papers on wetlands and jurisdictional issues, Rapanos, SWANCC and other significant court cases under Law on the menu.
GOP subpoenas Obama regulatory officials on water rule
By Timothy Cama – The Hill – July 14, 2015
House Republicans moved Tuesday to force the Obama administration to disclose certain documents related to the development of the Environmental Protection Agency’s (EPA) major water jurisdiction rule. The House Oversight Committee sent a subpoena on the rule to the White House Office of Information and Regulatory Affairs (OIRA), which is responsible for reviewing all major federal regulations before they are issued. Rep. Jason Chaffetz (R-Utah) alleged in his subpoena that OIRA and its chief, Howard Shelanski, are illegally withholding from Congress documents that lawmakers have requested since a March hearing. For full story, click here.
Business groups sue over Obama water rule
By Devin Henry – The Hill – July 13, 2015
The Obama administration continues to be flooded with lawsuits over its new water regulations.
The U.S. Chamber of Commerce, National Federation of Independent Businesses (NFIB) and other groups announced a lawsuit Monday against the Environmental Protection Agency's (EPA) "Waters of the United States" rule. They are the latest industry groups challenging the rule, which looks to define which water bodies the government has the ability to regulate. In a statement announcing their lawsuit, NFIB contended that the rule covers water bodies that go beyond what the EPA is legally allowed to regulate under the Clean Water Act. For full story, click here.
US EPA and Army Corps Issue Weak Clean Water Rule
By Maia Raposo – Waterkeeper Alliance – May 27, 2015
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) final “Clean Water Rule” issued today reduces the agencies’ jurisdiction to protect waters that have been covered under the Clean Water Act (CWA) since the 1970s. The final rule contains some very serious negative provisions including not protecting streams and rivers that have historically been protected under the CWA, exempting industrial-scale livestock facilities, and allowing streams and rivers to be impounded or filled with toxic coal ash and other waste. For full story, click here.
Barack Obama's water war
By Jenny Hopkinson – POLITICO – May 27, 2015
The Obama administration announced new protections Wednesday for thousands of waterways and wetlands, pushing ahead despite a fierce counterattack from powerhouse industries like agriculture, oil and home-building — and their supporters in Congress. On its face, the Waters of the United States rule is largely a technical document, defining which rivers, streams, lakes and marshes fall under the jurisdiction of the Environmental Protection Agency and the Army Corps of Engineers. But opponents condemn it as a massive power grab by Washington, saying it will give bureaucrats carte blanche to swoop in and penalize landowners every time a cow walks through a ditch. For full story, click here.
Clean Water Rule ‘A Major Victory for People, Great Lakes, Economy’
By Anna Brunner – Healing Our Waters-Great Lakes Coalition – May 27, 2015
The Healing Our Waters-Great Lakes Coalition is heralding a new clean water rule as a major step forward in protecting drinking water and restoring the health of the Great Lakes. The clean water rule, released today, restores Clean Water Act protections to streams and wetlands that supply drinking water to 1-in-3 Americans—117 million people, 30 million of whom live in the Great Lakes states of Minnesota, Wisconsin, Illinois, Indiana, Michigan, Ohio, Pennsylvania, and New York. For full story, click here.
House passes bill to stop EPA water rule
By Timothy Cama and Cristina Marcos – The Hill – May 12, 2015
The House voted Tuesday to overturn an Obama administration rule aimed at redefining which streams, ponds, wetlands and other waterways are under its jurisdiction. Passage of the legislation, which would require the Environmental Protection Agency (EPA) and Secretary of the Army to withdraw the proposed regulation within 30 days and craft a new one, fell largely along party lines by a vote of 261-155. The “waters of the United States” rule, which the EPA plans to make final this spring, has led to charges the administration is dramatically expanding its powers over water and would regulate puddles, decorative ponds, ditches and dry creekbeds. For full blog post, click here.
Senators to introduce bill to halt Waters of the US rule
By April Baumgarten – The Dickinson Press – April 30, 2015
U.S. senators will introduce a bill today that would send the controversial Waters of the U.S. proposal back to the Environmental Protection Agency, but the White House has threatened to veto the legislation. Bill co-sponsor Sen. Heidi Heitkamp, D-N.D., is holding a press conference this morning at the U.S. Capitol with other senators on the Federal Water Quality Protection Act, which would require EPA to withdraw the proposal and consult states, farmers and ranchers affected by the rule, also known as WOTUS. "We don't know what the final rule is going to look like," Heitkamp said, who has been working on this legislation for months. "We need certainty in rural America." For full story, click here.