State Water Resources Research Institute Program


Project ID: 2010DE186B
Title: The Impacts of Redefining "Navigable Waters" Under the Clean Water Act
Project Type: Research
Start Date: 6/01/2010
End Date: 2/28/2011
Congressional District: At large
Focus Categories: Law, Institutions, and Policy, Economics, Surface Water
Keywords: navigable waterways policy, streams, pollution
Principal Investigators: Johnson, Janet; Miller, Kate (University of Delaware)
Federal Funds: $ 1,500
Non-Federal Matching Funds: $ 3,000
Abstract: The Clean Water Act was passed by Congress in 1972 in order to protect the integrity of the nation's surface water by regulating pollution dumped into waterways. The original jurisdiction for the Act afforded the Environmental Protection Agency was broad in scope. However, two Supreme Court decisions (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006) have curtailed this jurisdiction by limiting what can be defined as a "navigable" waterway and thus protected under the Act. Subsequent to these decisions, the EPA has backed away from regulating pollution into small streams and waterways. This reduction in regulatory authority is expected to have serious and far-reaching negative impacts on water quality throughout the country. EPA studies have indicated that as many as 45 percent of major polluters might be either outside regulatory reach or in areas where proving jurisdiction is overwhelmingly difficult. Legislation in Congress, the Clean Waters Restoration Act, which would remove the word "navigable" from the law and restore regulatory authority to what it was prior to the Supreme Court's decisions, has been introduced but so far has failed to pass. In some states, including Delaware, legislation has been drafted in order to fill the gaps in the Clean Water Act. The overall goal of this research is to assess the impacts of the reduction in regulation following the two Supreme court decisions through calculating the number of stream miles and lake acreage that are no longer under the jurisdiction of the Clean Water Act. In addition, this research will investigate the steps that states are taking in order to fill the gaps in regulation, beginning in the Mid-Atlantic region and expanding to all fifty states, time permitting.

Progress/Completion Report, 2010, PDF

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