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More Than Half of States' Waters Go Unprotected in Absence of Federal Regulations

September 13, 2011

(Washington, DC) — In the September-October issue of the National Wetlands Newsletter, a new study by the Environmental Law Institute (ELI) looks at whether certain waters of the United States have gone without the protection of the Clean Water Act since the 2006 U.S. Supreme Court ruling in Rapanos v. United States. ELI researchers review federal agency practices—including the application of the significant nexus test—and found that under certain circumstances some waters have been vulnerable since Rapanos. The Institute recommends improving recordkeeping for losses of these aquatic resources and more consistent use of hydrologic and ecologic factors to evaluate significant nexus.

Also in this issue:

Authors from the Southern Environmental Law Center go “Back to the Past” with the historic use test under the River and Harbors Act of 1899. The authors recall the development of the historic use test, which establishes whether a waterway was used for the purpose of interstate commerce, and how the test could then be used to establish jurisdiction under the Clean Water Act.

The National Wildlife Federation provides a look at the legal rationale for protecting “isolated&rquo; waters, examining the ecological imperative put forward under Justice Anthony M. Kennedy’s significant nexus test, and arguing that the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers should assert existing Clean Water Act protections for isolated waters. Similarly, scientists from Oklahoma State University, Kansas State University, and the U.S. Geological Survey examine whether isolated wetlands are truly isolated and what ecosystem services they provide to society.

For three decades, the nationally recognized National Wetlands Newsletter has been a widely read and esteemed journal on wetlands, floodplains, and coastal water resources. The Newsletter, published by the highly respected Environmental Law Institute®, analyzes the latest issues in wetland regulation, policy, science, and management through feature articles written by local, national, and international experts from a variety of perspectives.