The “new” Clean Water Act and federal land management

Source:  EPA

The Supreme Court recently decided to (re)redefine the scope of the Clean Water Act (CWA) as it pertains to wetlands, which is likely to affect federal land management, as mentioned here.  Here is a recent analysis of that specific question.

Some attorneys feel that “By establishing a jurisdictional test that focuses entirely on surface waters, while ignoring the dynamic interaction of streams with shallow groundwater, a significant number of headwaters streams located on public lands will become non-jurisdictional,” and lose some protections, depending on what state they’re in (state Clean Water Act administration applies to federal land management).  Other attorneys (including one we know) said, “Laws like the National Forest Management Act, Federal Land Policy and Management Act, etc. extend protection to aquatic features too, making CWA application duplicative.”  The article mentions NEPA, but its procedural requirements can’t be considered substitutes for CWA’s substantive limits.  (“The Interior Department and the US Forest Service declined to comment.”)

Though federal public land laws and policies do include some requirements for federal agencies to protect water, agencies would have to choose to fill any gap between that level of protection and what the CWA requires.  My 2¢ – removing statutory protection will lead to erosion of other federal and state-imposed measures that may have been seen as supportive of the Clean Water Act, but will now become seen as more discretionary.  And land managers always seem to prefer “flexibility,” which often seems to mean flexibility to provide less protection.

3 thoughts on “The “new” Clean Water Act and federal land management”

  1. But Jon, how would “losing protections” actually work on federal lands? Someone will rewrite forest plan standards and guides (needs plan revision), or handbook protections (revise handbook) or… … Bureaucracy tends to progress along the same lines without a significant nudge.

    Someone would have to say… “oh yeah, this water body does not have CWA protections now, so let’s do something we wouldn’t have otherwise done.” It could happen, but I don’t see it as very likely.


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