![]() What formerly involved a simple visual inspection in the field now requires more complex assessments of databases and models describing precipitation and resultant streamflow over rolling 30-year windows. This change, however, is in direct opposition to EPA administrator Andrew Wheeler’s objective of streamlining the permitting process and increasing regulatory efficiency. Unlike the 1986 rule, the NWPR explicitly excludes ephemeral waters (those that flow only in response to precipitation events), thus contracting the network of streams that were previously regulated. The NWPR replaces this definition with one requiring that a waterway exhibit perennial or intermittent flow to be protected. Determining an ordinary high water mark requires evidence of regular flow from field observations, including debris lines, water staining, and other visual indicators. Riverside Bayview Homes, the agencies have used a WOTUS definition that relies on the delineation of “ordinary high water marks” to identify streams that fall under the protection of the CWA. Since 1986, when new regulatory guidance was established in response to the decision in United States v. What Did the Navigable Waters Protection Rule Change? The NWPR now replaces the Clean Water Rule as the latest attempt to define WOTUS. Get the most fascinating science news stories of the week in your inbox every Friday. After a series of court cases-while 26 states operated under the new rule and, after several more states resisted it, 24 continued to operate under the 1986 rule it was supposed to replace-the Clean Water Rule was formally repealed last September. Several state governments immediately balked, causing the Sixth Circuit Court of Appeals to halt the new rule’s implementation in 18 states. On the basis of instruction from the two justices, the agencies embarked on a massive analysis of available hydrological research and in 2015 advanced the Clean Water Rule. Justice Anthony Kennedy offered his own “ significant nexus” test, establishing jurisdiction on the basis of physical, chemical, or biological connectivity linking a traditionally regulated water (e.g., a large river) to the water body being considered (e.g., a small tributary or nearby wetlands). Chief Justice John Roberts chided the agencies for failing to develop a comprehensive rule to be used in defining the jurisdictional scope of the CWA. ![]() United States involved penalties brought upon a shopping center developer for filling wetlands in Michigan. Supreme Court split decision gave the agencies a new test for defining navigable waters. In one of the most recent battles over the CWA, a controversial and influential 2006 U.S. The ongoing battle for clarity continues to this day, as the agencies promulgate rules that establish CWA jurisdiction over certain waters and as those rules are subsequently checked by the courts. Others believe that its definition should be narrow, leaving states to regulate these types of waters if they so choose, arguing state agencies would have better regionalized knowledge to manage their water resources. The CWA has always been controversial, especially for its notoriously vague definition of navigable waters: “waters of the United States, including the territorial seas.” Some argue that the definition of waters of the United States, often called WOTUS, should be broad, thus allowing the federal government to secure protections for intrastate waters, headwater streams (small streams connecting watersheds to main river channels), and isolated wetlands. Moreover, the rule runs counter to its own goal to strike a “reasonable and appropriate balance between Federal and State waters” by shifting the cost and burden of analysis and enforcement to states. waters to the point that ecosystems may be permanently harmed. We argue that this rule blatantly ignores established science-including the agencies’ own studies and syntheses-and risks degrading U.S. We argue that this rule blatantly ignores established science and risks degrading U.S. Army Corps of Engineers and the Environmental Protection Agency (EPA hereinafter referred to as “the agencies”) and requires that a permit be issued prior to dredging, filling, or discharging pollutants in “navigable waters.” On 23 January, the agencies released the Navigable Waters Protection Rule (NWPR), which details how the CWA will be enforced, including which waters receive federal protections under the act. ![]() The act is enforced in tandem by the U.S. The Clean Water Act (CWA), which became law in 1972, is the primary federal mechanism by which streams, lakes, and wetlands are protected from degradation in the United States.
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