Background: The Clean Water Act (CWA), which was passed in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” has provided the foundation for protecting the rivers, wetlands and water supply of the U.S. By the 1980s, the U.S. had already lost over 53% of its wetlands, a critical component of the nation’s interconnected water supplies and fish and wildlife habitats. The U.S. continues to lose more than 80,000 acres of wetlands important to wildlife every year.

Two narrowly split and confounding U.S. Supreme Court decisions in 2001 and 2006 were misinterpreted by the U.S. Army Corps of Engineers (USACE) and Environmental Protection Agency (EPA) to administratively remove all CWA protections from 20 to 60 million acres of wetlands and more than 59% of stream miles in the continental U.S. Withdrawal of these protections by the USACE and EPA has increased the risk to our drinking water supplies, increased the likelihood and costs of flooding along major rivers, coasts and other waters, reduced water supplies, accelerated the loss of wetlands and aquatic habitats for waterfowl and other fish and wildlife, and decreased our ability to adapt to and mitigate climate change. In addition, the increased uncertainty introduced by the courts has made compliance with the law unnecessarily difficult for both the public and the agencies entrusted with CWA enforcement.

The confusing court decisions and agency interpretations stem from a failure to recognize and formally acknowledge that virtually all of the nation’s waters are interconnected. This has resulted in inconsistencies with the federal agencies withdrawing protection from broad categories of waters such as “geographically isolated wetlands” due to the scientifically incorrect assertion that they lack a connection to federal waters and other interests.

Need: Over 111 million Americans drink water from public supplies fed by streams and other waters no longer protected by the CWA. Furthermore, these surface waters also contribute significantly to recharging groundwater sources. Decreased water availability and quality means decreased human health and welfare, and higher water treatment costs for communities and taxpayers. The economic impact of not protecting our waters (with the negative impacts on water quantity and quality, flooding, recreational economies, and communities), amounts to many billions of dollars.

Wetland loss means increased flood damage such as that seen in the Midwest and Gulf coast recently. Flooding causes an estimated $3.7 billion in damages annually. Wetlands at greatest risk provide essential habitat for most of the nation’s duck breeding population and many other species of fish and wildlife. Once contaminated or lost, cleaning up or restoring our waters and wetlands is often prohibitively expensive or impossible. The nation’s waters and wetlands are particularly vulnerable to the impacts of climate change. However, conservation of our waters is at the same time a key strategy for adapting to and mitigating the impacts of climate change.

Water has been consistently documented to be the public’s top environmental issue. One nationwide survey recorded 15 times more citizens who believed there were too few wetlands compared to those who thought there were too many. Over 90% thought it was important to conserve wetlands.

Recommendations: Two overarching objectives can and should be addressed immediately so that the landmark Clean Water Act can once again provide the basis for “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters,” as it had for 30 years prior to 2001. Those objectives are to (1) restore longstanding protections to the interconnected water and wetland resources of the United States, and (2) provide clarity regarding the waters of the U.S. that are within the jurisdiction of the Clean Water Act.

To achieve those objectives, DU recommends that the Obama Administration take the following specific actions:

• Provide leadership and support for legislation, such as the Clean Water Restoration Act, that fully restores the level of Clean Water Act protections that existed from 1972 until 2001 by eliminating all judicial uncertainty regarding the intent of Congress;

• Remove the regulatory guidance provided by the USACE/EPA since 2001 on the CWA’s jurisdictional wetlands and replace it with new guidance that defines and protects the waters of the U.S. in a manner consistent with Congressional intent and within the bounds of the Supreme Court’s recent decisions.

• Develop new legislative authority to specifically protect freshwater and coastal wetlands across the United States due to their environmental and economic benefits. This should be a cooperative effort with agencies at the state level.

• Funding for wetland habitat programs is critical to the future of these important ecosystems. Providing maximum authorized funding for the North American Wetlands Conservation Act, Partners for Fish and Wildlife Program, Coastal Program, Joint Venture, and National Coastal Wetlands Conservation Program efforts is a high priority for wetlands and habitat conservation.

For more on DU's efforts to protect isolated wetlands see our Clean Water homepage