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New Data Assess Nation's Portfolio of Wetlands and Waters Without Federal Protection: Many Aquatic Resources Left Vulnerable Following 2006 Supreme Court Decision

September 2011

(Washington, DC) — The Environmental Law Institute today released a report assessing what wetlands and waters are not being protected by the Army Corps of Engineers since changes in federal Clean Water Act jurisdiction following the Supreme Court’s 2006 decision in Rapanos v. United States. The report America’s Vulnerable Waters: Assessing the Nation’s Portfolio of Vulnerable Aquatic Resources since Rapanos v. United States, also examined what states lack regulatory programs for these waters, finding that at least half the states do not regulate activities in waters not regulated by the federal government.

ELI obtained and reviewed all publicly available online determinations by the Corps from the years 2008-2009 that it lacked federal jurisdiction. ELI examined over 2,500 determinations from 31 Corps districts and recorded information on the aquatic resource types identified by the Corps as unregulated in certain circumstances, and the specific tests and data that Corps regulators used to disclaim federal jurisdiction. “Our study,” said ELI President John Cruden, “identifies loopholes in our Clean Water Act jurisdiction. The report should help state, local, and tribal governments fill the gap and protect vulnerable aquatic resources.”

ELI found that the most commonly listed wetland and water types where jurisdiction was not found included: Ephemeral streams; Prairie potholes; and Vernal pools. Arroyos, bogs, Carolina bays, closed-basin lakes, oxbow wetlands, playas, and Southeast coastal plain gum pond wetlands were also among the water bodies to be found nonjurisdictional by Corps regulators. Although these wetlands provide valuable ecological services, they have often been determined to not be under federal jurisdiction.

Entire regions of the country have states with no established freshwater aquatic resource permitting programs, including much of the Gulf Coast, the Midwest, the mountain West, and parts of the Southeast. These states rely entirely upon the determinations of the Corps and U.S. EPA. ELI study director James McElfish says: “States, tribes, and local governments have their work cut out for them. If there is no Clean Water Act jurisdiction, it is up to them to protect many of these important wetland types.” McElfish notes that the report contains a detailed geographical appendix showing exactly what kinds of wetlands and waters at risk in various parts of the country.

The report was prepared with the support of the U.S. EPA’s Office of Wetlands, Oceans, and Watersheds. It also appears in the September-October issue of the National Wetlands Newsletter.