Overview of the issue

The Clean Water Act, with its goal “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” is our most powerful tool for safeguarding water quality, wetlands, and riparian habitat. Passed in 1972, the Act has been wildly successful, significantly increasing the percentage of “fishable” and “swimmable” streams in the United States. The Act has helped to hold polluters accountable, provide communities with funding to help clean up damaged habitat, and prevent 700 billion pounds of toxic pollutants from entering our nation’s waters each year.

How Does the Clean Water Act Work?

The Clean Water Act helps to protect rivers, streams, and wetlands through two permitting programs. One requires permits for any point source—for example, discharges from a factory or wastewater treatment plant—discharging into “waters of the United States,” thereby limiting pollutants added to lakes and streams. The second requires permits for the discharge of dredge and fill materials, mostly from construction activities. The Environmental Protection Agency and U.S. Army Corps of Engineers, respectively, issue these permits, but the Act allows states the authority to make permitting decisions for activities that discharge pollutants to streams and wetlands within their borders. The states also establish water quality standards for every water body and the EPA approves these.

These authorities, working in concert, ensure that the Clean Water Act protects our outdoor recreation opportunities and drinking water.

Photo by Jeff Weese via flickr

Threats to America’s Headwaters and Wetlands

Clean, productive wetlands and headwater streams are essential for hunters and anglers. Wetlands provide critical migratory and nesting habitat for waterfowl, and small, headwater streams provide important nursey habitat for salmon and trout. These small streams and wetlands also reduce flooding, filter pollution, and recharge aquifers.

Sportsmen and women, historically and currently, have been strong proponents of protecting clean water, including in headwaters streams and wetlands. A 2018 national poll carried out for the TRCP confirmed that:

  • 92% of sportsmen and women want the federal government to strengthen or maintain current standards for clean water protections.
  • 93% of hunters and anglers believe that the Clean Water Act has been a positive thing for our country.
  • 4 out of 5 sportsmen and women not only support restoring Clean Water Act protections for headwaters streams and wetlands, but their commitment is firm enough that they would be willing to pay more in taxes to restore and/or maintain our nation’s waters.

Despite this support and the Clean Water Act’s successes, two Supreme Court cases in 2001 and 2006—and subsequent federal agency actions—have left us without a shared understanding of which bodies of water the Act protects.

In 2015, after an extensive public process, and based on a massive study of hundreds of scientific articles about water quality, the EPA and Corps adopted a rule to clarify federal jurisdiction over the “waters of the United States.” The rule would have helped conserve the roughly 60 percent of streams and 20 million acres of wetlands that were at risk of being polluted or destroyed because of jurisdictional confusion.

America's duck factory prairie potholes region
Aerial view of prairie potholes, otherwise known as America’s duck factory. Photo by USFWS Mountain-Prairie/Flickr.

These waters, and the downstream waters into which they flow, provide drinking water for millions of Americans and essential habitat for fish and wildlife, supporting a robust outdoor recreation economy worth $887 billion annually.

Implementing the 2015 rule would have helped to slow the loss of wetlands, which are critical to fish and wildlife. In the last 200 years, the nation has lost more than half of its wetlands. Trends slowed with the passage of the Clean Water Act, but the most recent national assessment of wetland trends documented a 140-percent increase in the rate of wetlands lost—the first acceleration of wetlands loss since the Clean Water Act was enacted 45 years ago.

Unfortunately, as a result of direction in a 2017 Executive Order, the EPA and Corps repealed this 2015 rule. Then in 2020, the agencies issued the Navigable Waters Protection Rule. Based on the opinion of a minority of Supreme Court Justices written in 2006, this new rule left millions of miles of headwater streams and 20 million acres of wetlands without Clean Water Act protections, a certain tragedy for fish and wildlife, hunting and fishing, and clean water.

Hunting and angling organizations strongly opposed the new rule, which reversed decades of protections that were put in place to ensure clean water for future generations. Some challenged the new rule in court. The Biden Administration has already announced that it will begin work to adopt another rule, likely more similar to the 2015 Clean Water Rule.

Other Attacks on the Clean Water Act

In recent years, there have been other attempts to weaken the impact of the Clean Water Act. In 2020, the EPA issued a rule that restricts the states’ authority to impose conditions on pending development permits that could affect water quality and reduces the time that states can take to review these applications. Without state collaboration and due diligence, increased damage to habitat is likely.

Photo by Gregg Flores @wheretheriverruns

What Is TRCP Doing?

As an organization that exists to guarantee all Americans quality places to hunt and fish, the TRCP is working with its partners to restore protections for streams and wetlands and defend against further attacks on the Clean Water Act—and all our nation’s bedrock conservation laws.

Specifically, we are engaged on two fronts to reverse the agencies’ 2020 rules. First, the TRCP has joined with several partners to file “friend of the court” briefs in litigation. These briefs explain why protection of small headwaters and wetlands is so important to our nation’s fish and wildlife and how restoring state authority would help to protect water quality. In addition, the TRCP has already begun to talk to the Biden Administration about revision of both rules, which need to be based on strong science and a forward-thinking approach to watershed conservation.

American sportsmen and women want cleaner water, better fish and wildlife habitat, and conservation improvements that build on the successes of the past. We need federal tools that ensure this can happen. With all the other threats to our nation’s waters, now is not the time for the federal government to abandon its responsibility to conserve the streams and wetlands that support healthy fish and wildlife populations.

A Brief History

Clean Water Act

1899

The Rivers and Harbors Act

Congress passes the nation’s first environmental law, the Rivers and Harbors Act, which grants the U.S. Army Corps of Engineers the authority to issue permits for dredging activities and criminalizes the discharge of dredge and fill material into navigable waterways without a permit.

1948

The Federal Water Pollution Control Act

The Federal Water Pollution Control Act of 1948 is enacted to combat water pollution. While this was a good first step toward comprehensive federal water quality programs, it wasn’t effective in decreasing water pollution.

1965

Water Quality Act

Congress tried again, passing the Water Quality Act of 1965, which gave states the OK to set water quality standards, but did not require federal enforcement or funding.

1969

A River on Fire

The Cuyahoga River in downtown Cleveland burns, causing $50,000 worth of damage, destroying a bridge, and halting rail travel. This national media event spurred Congress to introduce and pass the Clean Water Act to clean up and protect America’s rivers.

1972
1985

United States v. Riverside Bayview Homes

In a case involving a housing developer in Michigan, the U.S. Supreme Court rules that Clean Water Act jurisdiction extends to wetlands adjacent to navigable waters for the first time, clarifying that the Act protects more than water.

2001

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers

In a case involving the development of a Chicago-area landfill, the U.S. Supreme Court rules that Clean Water Act jurisdiction did not extend to isolated, non-navigable constructed ponds. In so doing, the Court made clear that the Clean Water Act did not protect all water.

2006

Rapanos v. United States

In a case involving a mall developer who filled in a wetland without a permit, the U.S. Supreme Court rules that the federal agencies’ jurisdictional rules went too far, but no majority of Justices agreed on the appropriate place to draw the line between which waters and wetlands were covered and which weren’t.

2008

New Agency Guidance

In response to the 2006 Court decision, the EPA and Corps issue guidance defining Clean Water Act jurisdiction. Fewer than 5% of previously covered waters lose protection.

2015

Clean Water Rule Protects Headwaters and Wetlands

duck taking off

The EPA and Corps issue the Clean Water Rule clarifying coverage for most streams and wetlands and expanding the scope of the Clean Water Act by approximately 3%. Though sportsmen and women celebrate this as an achievement for water quality, multiple states and industry groups challenge the rule in court.

2019

A Clean Water Rollback

As a result of direction in a 2017 Executive Order, the EPA and Corps repeal the 2015 Clean Water Rule.

2020

Navigable Waters Protection Rule

The EPA and Corps issue the “Navigable Waters Protection Rule,” which removes Clean Water Act protections from more than 18% of the nation’s streams and 50% of our remaining wetlands. Multiple states and NGOs challenge this new rule in court.

2020

Restriction of State Authority

In fulfillment of an executive order concerned primarily with pipeline permitting—which includes just a fraction of all the federal permits for which states provide conditions to protect their waters—the EPA finalizes its 401 rulemaking, severely restricting the ability of states and tribes to protect their local waters and allowing the federal government to ignore these local voices in federal permitting decisions.