Trees draw in water, nutrients, and oxygen from thousands of tiny roots in the soil. Damage to even the smallest of these structures can affect the health of the tree itself. A river system works in much the same way. Rivers don’t start in just one place, but rather arise from a network of small streams and wetlands that gradually join together as they flow downstream.

Small headwater streams and wetlands provide the greatest connections between land and water, trapping and storing nutrients, providing critical habitat, storing floodwaters, and filtering out pollutants. Scientific studies repeatedly demonstrate that the health of downstream lakes, rivers, and estuaries are tied to the health of small streams and wetlands upstream.

Small Streams And Wetlands Aren’t Consistently Protected Under The Clean Water Act

The science is clear that what’s upstream affects downstream waters. Unfortunately, the current state of the policy is less so. Despite nearly thirty years of comprehensive protection under the Clean Water Act, two Supreme Court decisions in 2001 and 2006 put protections for small streams and wetlands into question.

In Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, the Supreme Court in a 5-4 opinion ruled that the use of seasonal interstate ponds, or so-called “isolated” ponds, by migratory birds was not enough to protect those waters under the Clean Water Act.

Five years later, the Supreme Court in Rapanos v. United States was unable to reach a majority opinion on the question of whether wetlands that were near to tributaries of traditionally navigable waters were protected under the Clean Water Act. Four justices in the plurality opinion would protect only “relatively permanent waters,” excluding waters that flow seasonally or after rainfall, that are connected to traditionally navigable waters and only protect wetlands with a “continuous surface connection” to other protected waters.

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Justice Kennedy’s concurring opinion held that some wetlands would require demonstration of a “significant nexus” to traditionally navigable waters through a case-by case basis to be protected under the Clean Water Act.

In effect, these two cases created significant uncertainty about what types of waters were actually protected under the law. Agency guidance documents designed to help field staff apply these rulings made it substantially more difficult to include certain types of waters under the Clean Water Act. Guidance released in 2003 following the SWANCC decision effectively removed protections for non-navigable, intrastate, and so-called “isolated” waters such as vernal pools and playa lakes. Guidance following the Rapanos decision added to this uncertainty which effectively removed protections for streams that flow seasonally or after rain, requires resource-intensive case-by-case analyses, and essentially stripped tributaries of categorical protection.

The end result? Significant confusion, delayed implementation, and declining enforcement of the Clean Water Act. In other words, the uncertainty surrounding the scope of the Act leaves small streams and wetlands vulnerable to pollution. For example, when crude oil was discharged into the seasonally flowing Edwards Creek near Talco, TX, the EPA did not pursue enforcement of this spill because it was too complicated to prove that the creek was covered under the Clean Water Act. More than half of the County’s residents get their drinking water supplies from these types of seasonally flowing creeks.