June 5, 2007
Melinda Kassen, 303-440-2937
Steve Moyer, 703-284-9406
For Immedeate Release:
Arlington, VA –, Trout Unlimited’s initial review indicates that thousands of miles of headwaters streams, and thousands of acres of wetlands, could lose protection under the Clean Water Act Jurisdiction Guidance released today by the Army Corps of Engineers and the EPA.
Weaknesses in the long-awaited guidance, and the regulatory mess caused by the recent Supreme Court decision which gave rise to the Guidance, all point to the strong need for Congressional action to fulfill the goals of the Clean Water Act, one of the nation’s most fundamental environmental laws.
The Corps and EPA created the guidance for use by EPA regions and Corps districts for implementing the Supreme Court’s decision in the consolidated cases Rapanos v. United States and Carabell v. United States (Rapanos decision). Both cases focused on whether the Clean Water Act protects wetlands adjacent to tributaries that flow into larger water bodies. The Court’s reasoning was split, with a plurality ruling that the Act only protects relatively permanent bodies of water, such as major lakes and rivers, and the wetlands that abut them directly.
Justice Kennedy concurred with the plurality, but also found that the Act protected waters with a “significant nexus” to other waters and that ecological factors such as fish and wildlife habitat could create such a nexus.
TU was disappointed by the Corps/EPA’s interpretation of Justice Kennedy’s significant nexus test in the Guidance. Kennedy emphasizes a regional approach to establishing a significant nexus, once by arguing that wetlands may "either alone or in combination with similarly situated lands in the region, significantly affect" water quality in a downstream, navigable river, and then also by suggesting that the federal agencies could establish rules regarding significant nexus for whole categories of tributaries.
Instead of following Kennedy's lead, the Corps/EPA Guidance requires that the agencies look only at the directly affected tributary reach to determine significant nexus—not, as Kennedy suggests, at the relationship of that particular tributary to the larger region. While it may be hard to document that every single small, pristine headwater tributary alone, contributes significantly to the health of the mainstem of a river miles downstream, these tributaries, when grouped with others similarly situated in the region, most certainly do have a significant impact on that downstream mainstem of the river.
Given the far-reaching consequences of this Guidance, Trout Unlimited calls on Congress to enact legislation as soon as possible to return the Act’s protective standard to what was in place for decades prior to the Rapanos decision, and another harmful related decision, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, which also resulted in reduced Clean Water Act protection to some wetlands not located near to streams and rivers.
Trout Unlimited Supports the Clean Water Restoration Act of 2007, recently introduced by Representatives Oberstar, Dingell, and Ehlers, which reaffirms the traditional scope and clear purpose of the Clean Water Act, and urges Congress to pass it as soon as possible.
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Trout Unlimited is North America’s leading coldwater fisheries conservation organization, with more than 150,000 members dedicated to the protection and restoration of trout and salmon fisheries and their watersheds.