Little Streams and Legal Transformations
55 Pages Posted: 3 May 2016 Last revised: 3 Mar 2017
Date Written: March 2, 2017
In the past two decades, federal regulatory protections for the United States’ little streams have changed. This article describes those changes and explains why they matter to the broader field of environmental law.
The history of those changes is directly relevant to controversies that currently preoccupy the courts, Congress, and federal agencies, all of which are currently considering the appropriate scope of federal jurisdiction under the Clean Water Act. Much of the rhetoric of those debates reflects misunderstandings of the paths through which regulation has evolved and of the drivers of that evolution. Stream protections have changed, sometimes dramatically, but not in the ways litigants and politicians would lead people to believe, and not with the dire consequences of which many people have complained.
At a deeper level, the story of stream protections presents an alternative window into the continuing evolution of environmental law. Much of the contemporary mythology of environmental law is dominated by pessimistic stories of gridlock and by cynical visions of administrative governance. Congress, in these stories, is hopelessly stuck, and administrative agencies are either overregulating zealots or industries’ captives. The recent history of small stream regulation does provide some nuggets of support for those dark visions. But many other elements of that history support a different kind of narrative, in which environmental law continues to evolve, and in which the affirmative efforts of government agencies play key roles in that evolution.
Keywords: headwater streams, streams, tributaries, Clean Water Act, EPA, Army Corps of Engineers
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