Protecting Small Streams and Wetlands Currently At-Risk

Since a Supreme Court Ruling in 2001, protections under the Clean Water Act have been narrowed. Following an overbroad 2003 EPA policy, many waters are no longer considered covered under the scope of the Clean Water Act, leaving many small streams and wetlands in jeopardy and vulnerable to filling and pollution. Because small streams make up a majority of stream miles in a drainage network, protecting small streams and wetlands is critical for downstream clean water, flood protection, and healthy wildlife habitat.

More recently, the Supreme Court handed down a splintered decision in two cases in 2006 (Rapanos and Carabell) that asked the Court to narrow the Clean Water Act’s coverage in an attempt to allow discharges of toxic chemicals, sewage, and other pollutants into a great majority of the nation’s streams and wetlands. The confusing outcome from the Court has led to much uncertainty about what waters are protected, potentially affecting millions of acres of wetlands and 60% of the nation’s stream miles.

Some federal courts are using the decision to justify stripping protections from small streams. Additionally, unnecessarily narrow guidance from EPA and the Army Corps of Engineers places a huge burden on their field staff to repeatedly prove what we already know scientifically – that small streams and wetlands are integrally linked to the health of downstream waters – as a prerequisite for stream protection. Only two years after the Rapanos decision, it was revealed that the EPA’s enforcement of Clean Water Act cases has also declined dramatically as a result of these Court cases.

Legislative Solution Needed

To remedy these problems, Congress should pass the Clean Water Restoration Act, which would restore the longstanding and broad scope of protection as originally intended by Congress.  The Obama Administration supports such a solution – a letter from the heads of the Departments of Agriculture and Interior, the Council on Environmental Quality, the Corps of Engineers and the Environmental Protection Agency makes clear that a legislative solution is needed to “broadly protect the nation’s waters” and return consistency and predictability to the scope of the law.

There is also robust support in the scientific community given the critical linkages between small streams and clean water. More than 160 scientists wrote a letter supporting the Clean Water Restoration Act.

Short of legislation, there are other opportunities to better protect our waters. Most recently, the EPA has released updated guidance as a step towards enhancing protection for streams and wetlands under the current Supreme Court decisions. A rulemaking to better define what waters are protected would go even further towards restoring critical protections to the small streams and wetlands that are vital to the health of our nation’s rivers and the protection of our safe, clean drinking water supplies.

Resources

• Report: Courting Disaster: How the Supreme Court Has Broken the Clean Water Act and How Congress Must Fix It
• Report: Effects of the SWANCC and Rapanos Supreme Court Rulings
• Report: Where Rivers Are Born: The Scientific Imperative for Protecting Small Streams and Wetlands
• Fact Sheet on the Clean Water Restoration Act