The links below provide an outline of the material for this lesson. Be sure to carefully read through the entire lesson before returning to Canvas to submit your assignments.
In Lesson 9, students will review the intent and chronology of major U.S. laws and international policies concerning water and wetlands. A one-page assignment will introduce you to a complex case (Rapanos v. United States) from the U.S Supreme Court that sought to address connectivity among waters. The case, decided in 2006, continues to make legal, technical, and political waves today in the U.S.
By the end of this lesson, you should be able to:
This lesson is one week in length. Please refer to the Course Calendar in Canvas for specific time frames and due dates. To finish this lesson, you must complete the activities listed below.
Requirements | Assignment Details | Access/Directions |
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To Watch |
Watch/Read through the Lecture 9.1 - Water Law Regulation & Policy PowerPoint file. |
Registered students can access the Microsoft PowerPoint files under Lesson 9 in Canvas. |
To Read |
Required
Optional
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To Do |
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If you have any questions, please post them to our Questions? discussion forum located under Orientation and Resources in Canvas. While you are there, feel free to post your own responses if you, too, are able to help out a classmate.
Credits: GEOG 431 Lesson 9 – Water law, regulation, and policy. Authored by Robert P. Brooks, Ph.D., Department of Geography, The Pennsylvania State University, 2014. Material adapted from the text, references cited, and information gleaned from the websites listed.
…jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.
Justice Kennedy (2006),
Legal decision from the Rapanos v. United States case
Laws and policies (at the national and state level, or international treaties among nations) determine which waters are protected and which are not. Laws and policies, and the institutions that implement them, are tailored to meet the unique needs of the nation, state, or local jurisdiction from which they originate. Despite inherent differences, there are commonalities among the laws, regulations, policies, and guidance that govern water. As stated in the text, the history of water rights – addressing “the use of and right to use water” – has evolved through time from Roman law. Today, most governance systems concerning water apply one of two rights: 1) riparian water rights, or 2) prior appropriation water rights. Riparian rights allocate water based on the proximity of those who own (or manage) the land adjacent to the water in question, whereas prior appropriation is based on a first-use basis. In the U.S., the eastern states tend toward riparian rights (allowing more public access). The western states, settled later, use a system of prior appropriation, where private ownership and access is determined by who got there first (Fig. 9.1).
As new challenges arise (such as climate change’s effect on freshwater systems), and new knowledge arrives (such as the contribution of small and isolated wetlands to nutrient cycling or animal life history), so must laws and policies evolve to be responsive.
In the U.S., the federal Clean Water Act (CWA) declares a goal to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters,” (33 U.S.C. §1251(a)). This comprehensive law, passed in its current form in 1972, continues to be the primary means of restoring and maintaining water quality in the U.S. Along with the Safe Drinking Water Act of 1974, focusing on supplying potable water, water quality, in general, has improved over time. In addition, various state laws are aimed at protecting the waters of each state, or specifically at preventing pollution or degradation of those waters. Typical forms of regulation include permit requirements for certain activities (such as dredging or filling of streams, lakes, or wetlands), but just as typically contain exceptions and exclusions (frequently for practices associated with agriculture and forestry). Other nations with comprehensive environmental protections and programs have similar mechanisms in effect.
Chapter 10 is the text discusses water economics which is important for the understanding of water conflicts. Chapter 11 of the text addresses both water conflicts and law/governance. We'll get to issues of conflict in Lesson 10. Focus on gaining background on the origins of water rights, followed by how they are expressed internationally, especially with regard to what the U.N. seeks for water governance among all nations.
Holden (2020) - Teelucksingh et al., Chapter 10 - Water Economics (ONLY p.353-365)
Holden (2020) – Tongper and Barua, Chapter 11 Water conflict, law and governance
With Chapter 11, we are focusing on water law and regulations at the federal level in the U.S. You'll read about protections both historically and under present rules. Focus on the intent of the Clean Water Act. This will lead into the recent water-related cases decided by the U.S. Supreme Court, especially Rapanos v. United States. Discussion #4 addresses this case and its aftermath.
McElfish, JM, Jr., and RP Brooks. 2013. Policy and regulatory programs affecting wetlands and waters of the Mid-Atlantic Region. Pages 441-462 [Chapter 13 in RP Brooks and DH Wardrop (eds.) Mid-Atlantic Freshwater Wetlands: Advances in science, management, policy, and practice.]
This brief "white paper" explains some of the issues associated with the Rapanos decision. Additional readings are recommended for those that find these applied aspects of implementing a law fascinating.
Rapanos White Paper: Brooks and Havens 2014, Proposal to USEPA
Your assignment for Lesson 9 is to review scientific, legal, policy, and guidance documents concerning the “fallout” from the U.S. Supreme Court decision, Rapanos v. United States 547 U.S. 715 (2006), and write a two-page opinion paper that summarizes reactions to the outcomes of this “fallout,” addressing relevant scientific and ecological principles as you understand them, and your personal predictions regarding any changes to the law in the near future.
If you are interested in pursuing this topic further, then you should keep following the continuing saga of USEPA’s efforts to forge new guidance for defining the legal jurisdiction over waters, especially wetlands and their relative connectivity to downstream streams and rivers. In a nutshell, USEPA through its Science Advisory Board (SAB) is releasing a science report, Connectivity of Streams and Wetlands to Downstream Waters [1]. The original author of Geography 431 was one of about two dozen experts who reviewed and commented extensively on this report (Summer of 2014). Simultaneously, the USEPA and Army Corps of Engineers released a guidance document, Definition of ‘‘Waters of the United States’’ Under the Clean Water Act [2], to explain what waters are subject to federal jurisdiction in the U.S., and how to identify them. The final science report ultimately will inform the guidance document. The pair of documents, however, has generated significant angst from various interest groups that will be or think they will be affected by this guidance. To put it mildly, the blogosphere has been active. Have a look.
Description | Full points | Partial points | No points | Points total |
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Reaction summary | Established several reactions (supported by evidence) to the fallout from Rapanos v. US. | Only focused on one reaction about Rapanos v. US. Supporting evidence is vague or missing. | No summary or only focused on one reaction about Rapanos v. US. Supporting evidence is vague or missing.erent reactions. | 10 |
Addressed scientific/ ecological principles | Clear understanding of ecological processes and/or scientific principles. Used knowledge to support different reactions to Rapanos v. US. | Talks about some ecological processes and/or scientific principles. However, key points are misunderstood or missing. | Does not address ecological processes and/or scientific principles related to Rapanos vs US. | 5 |
Future predictions | Established clear personal predictions on the effects of Rapanos v. US. Thoughtful and well defined. | Personal predictions are brief. More content needed. | No personal predictions on the effects of Rapanos v. US. | 5 |
College-level writing | No grammar or spelling mistakes. Content is organized well. | 2-3 grammar or spelling mistakes. Flow and organization of content could be improved. | 3+ grammar or spelling mistakes. Content does not flow and is unorganized. | 5 |
Citations | Included a complete works cited page. All information is in the student’s own words and appropriately cited. | Missing 2-3 in-text citations or works cited page is incomplete . Some information is not written in the student’s own words. | Missing 3+ in-text citations or works cited page is incomplete or missing. Most information is not written in the student’s own words. | 5 |
Please submit your paper using the Assignment 9.1 - Opinion paper on Rapanos v. United States drop box under Lesson 9 in Canvas. (See the Calendar in Canvas for specific due dates.)
The objectives of Lesson 9 were to introduce you to the complexity of water laws, regulations, and rights spanning from local protection through U.S. federal approaches, and finally, international perspectives. You should know the basic origins of water laws and protections, and the approximate chronology for when protections were put in place. Be cognizant of the two primary U.S. federal laws that protect freshwater: Clean Water Act (1972) and Safe Drinking Water Act (1974). Finally, you should appreciate the ramifications of the Supreme Court’s (SCOTUS) decision in the Rapanos case.
You have reached the end of Lesson 9! Double check the to-do list on the Lesson 9 Overview [3]page to make sure you have completed all of the activities listed there before you begin Lesson 10.