Environmental Law

How do you evaluate whether this wetland is navigable water subject to the jurisdiction of CWA?

Based on CWA’s guidelines, the wetland would be covered by its jurisdiction if water flows in a part of the year and if it has chemical, physical or even biological link to the broader water bodies downstream that would affect the general integrity of the other water streams (EPA, 2017). The analysis would, therefore, be done holistically. In addition, the wetland does not hold any direct link to the interstate water of navigable water but it holds a significant biological connection with the larger bodies and thus this would be protected by CWA. More so given that Mississippi River is protected under the jurisdiction of the Agency, it is therefore obvious that the small stream of the wetland will be a subject to protection (EPA, 2017). In that the jurisdiction state that small streams despite their seasonality are a source of clean water to a number of people and should thus be guided.

Would The Wetland Be Considered A Waters Of The United States Under The Regulatory Definition Of United States In The Effect At The Time Of Rapanos Decision?

At the effective time of Rapanos decision, the wetland would be accounted as a ‘’ Waters of the United States’’ given that it is a natural and small water stream that stores water for a part of the year. The rule stated that all the water sources regardless of their sizes deserve protection given that they are a water source for individuals (EPA, 2017). In addition, given that the Water flows to Mississippi which is a protected River this would mean that the land also necessitates protection.

Under The New Clean Water Rule?

The wetland would still require protection and the fresh Clean Water Rule which seeks to protect all the water streams that provide clean water. This would, therefore, mean that any pollutant would be prosecuted for interfering with public resources which are under protection (EPA, 2017). The rule extended federal regulatory into the backyards of the country and therefore even the streams and wetlands that are situated on private location are subject to protection.

Under The New Rule That Adopts The Definition Of Waters Of The United States Articulated By The Plurality In Rapanos?

Under the new rule, the wetland is a ‘’Water of the United States’’ that should be protected from any damage, pollution, and destruction given that it can ultimately affect the general water state (EPA, 2017). In that being a natural source that is maintained physically it is considered to be a small stream that offers clean water and its use is limited and protected.

If The Wetland Is Jurisdictional Water (Covered By The CWA) Does Your Client Need A 404 Permit?

Given that the wetland is a subject of CWA my client will be required to acquire 404 permits (EPA, 2016). Section 404 necessitates the acquisition of a permit prior to the discharging dig up or filling materials into the American waters unless that activity has been exempted by the regulation which might include farming or tree planting (EPA, 2016). The permit seeks to ensure that no digging materials are allowed to be utilized with the existence of alternative options that creates fewer damages to the water surrounding (EPA, 2016). In addition, the utilization of bulldozers as the client wishes would result in significant water degradation and population. In this context, the client will be required to apply for the permit to demonstrate the measures that will be utilized to avoid destroying the wetland as a water source, compensation will be acquired for any damages and that the potential risks are reduced (EPA, 2016).

 

 

 

 

 

References

EPA. (2016). Guidance to Identify Waters Protected by the Clean Water Act. Retrieved from https://www.epa.gov/cwa-404/guidance-identify-waters-protected-clean-water-act

EPA. (2017). Section 404 of the Clean Water Act: How Wetlands are Defined and Identified. Retrieved from https://www.epa.gov/cwa-404/section-404-clean-water-act-how-wetlands-are-defined-and-identified

EPA. (2017). Waters of the United States (WOTUS) Rulemaking. Retrieved from https://www.epa.gov/wotus-rule/about-waters-united-states