Ditching our innocence: the Clean Water Act in the age of the Anthropocene.

Author:Salcido, Rachael E.
Position:Controversies Surrounding the 2015 Clean Water Rule
 
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  1. INTRODUCTION II. BACKGROUND ON WATERS OF THE UNITED STATES A. Supreme Court Decisions Leading to the Clean Water Rule B. Post-Rapanos Confusion C. Scientific Study Underpinning Rulemaking 1. Ditches Can Increase Hydrological and Biological Connectivity 2. Ditches Change the Way Water Moves Through a Watershed III. CWA REGULATION OF DITCHES A. Regulation of Ditches Under the Clean Water Rule B. Rationale for Using "Exclusion " to Address Ditches C. Role of Ditches in Agriculture D. Reception of the Rule E. Ditches and the Significant Nexus IV. THE ECOLOGICAL SIGNIFICANCE OF DITCHES V. PROTECTING CREATED LANDSCAPE FEATURES IN THE AGE OF THE ANTHROPOCENE VI. CONCLUSION I. INTRODUCTION

    At the University of California, Davis, the UC Davis Arboretum stretches along the campus's southern border. The Arboretum covers more than one hundred acres and hosts the largest assemblage of California native plants in the California interior. (1) The Arboretum houses more than thirty species of mammals, seven fish species, three amphibian species, nineteen kinds of reptiles, and more than 135 species of birds have been observed nesting or roosting in the Arboretum. (2) At a campus focused on the environment, the Arboretum serves as a constant reminder of the stakes in our environmental debates. And the living heart of the Arboretum is a long, narrow waterway, which broadens in several locations into picturesque reflecting pools. The Arboretum Waterway and associated ponds cover ten acres and hold roughly 1.8 million cubic feet of water at full capacity. (3) A path runs the roughly one and one third mile length of the Arboretum Waterway, through the length the Arboretum, crossing and recrossing the stream. In the summer, when temperatures soar over one hundred degrees Fahrenheit and the campus hasn't seen a raindrop in months, this stretch of water feels like the only thing keeping the Arboretum from burning up. The Arboretum Waterway gives the Arboretum the feeling of an oasis in California's seasonal desert.

    The problem with this image, of course, is that this isn't real nature. Its all just a human construction. The waterway running through the Arboretum is a ditch, or maybe a drainage pond, running along what was once roughly the course of the North Fork of Putah Creek, the Creeks historic main stem. The city of Davis, California, (4) experienced regular flooding from the North Fork of Putah Creek until the 1890s, when the stream was rerouted to a manmade streambed running south of the city. (5) Rerouting the stream left an empty streambed through the city. The Corps of Engineers finished the rerouting in the 1940s, with the addition of permanent levees along the new southern route for the creek and the historic North Fork. (6) Volunteers created the "creek" running through the Arboretum in 1969, along the empty channel of the North Fork of Putah Creek. (7) The water in the Arboretum Waterway comes from the campuss central drainage system, which collects storm water runoff and sends it, via large pipes, into the Arboretum Waterway. (8) During major rain events, the storm water may flow via pipe into a pump pond and then into an underground storm drain; aside from these events, the creek has no flow. (9) So this isn't a real creek, or real nature. Its just something we made to look pretty on campus. Faux nature, (10) if you will.

    But here's the rub: for the 250,000 people who visit the Arboretum Waterway every year, (11) for the more than 100 UC Davis classes that use the arboretum, (12) and for the thousands of school children who visit annually, this place, with its manmade creek, may be the closest they come to nature. (13) And certainly, to the fish, wildlife, and plants that call the Arboretum home, the waterways unnatural origin doesn't matter at all.

    More broadly, most of our natural places have some degree of human impact--every ecosystem we have studied shows pervasive human impacts. (14) A few examples: nearly all of the larger rivers in the northern third of the world are now regulated by dams, which control most or all of their flow; (15) as early as the 1950s, the United States Department of Agriculture (USDA) estimated that 189,000 miles of open ditches had been constructed to drain agricultural lands; (16) and estimates for loss of riparian habitats in the United States range as high as 70%, due in large part to channelization. (17) We are entering the Age of the Anthropocene, a period in which human activity has become the dominant influence on climate and the environment. We are "curating" our environments and have the capacity to contribute to resident, intact systems or ensure the demise of all ecosystem services. Increasingly, the old separatist view that considers humans as something quite apart from nature is falling away, (18) as ecologists recognize that we must determine what our natural environment will look like. (19) Our efforts to preserve pristine environments are falling short; there simply aren't enough pristine places left, and our ecological footprint, through global crises like climate change, encompasses the whole earth. Most of our interactions with the natural world now occur in environments that we have either created out of whole cloth or deeply influenced, and our efforts at environmental protection must recognize the central role of manmade environments in our future. Many of our environmental statutes and regulations are based on the outmoded view of humans as something outside of nature, (20) and the new Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) regulations defining the waters of the United States for jurisdictional purposes under the Clean Water Act (CWA or the Act) (21) are no exception. (22) Although evident in the agencies' decision to exclude manmade structures like farm ponds and reflecting pools, this paradigm is perhaps clearest in the regulation's treatment of the lowly ditch. Ditches, and the agricultural processes they facilitate, have important impacts on the natural environment that may require regulatory attention, and ditches may serve in and of themselves as important "natural" habitats for species of conservation concern.

    The proposed Clean Water Rule attempted to clarify the agencies' practice related to regulation of ditches, and agricultural activities more broadly. (23) However, the proposed rule's treatment of ditches became one of the most controversial pieces of the proposed rule, and the agencies revised the final rule to largely exclused ephemeral and intermittent ditches that flow only when it rains, and it include the narrow class of ditches that are also tributaries. (24)

    The controversy over ditches illustrates a confluence of factors. Ditches refer to a manmade hole used to move or hold water, (25) and some agitated for the CWA rule to exclude all manmade features from jurisdiction. (26) A public campaign designed to ridicule the scope of jurisdiction over ditches and other mandmade features proposed for coverage by the new rule (27) illustrates a general strategy of obscuring the actual scope of interconnectedness of certain manmade features, focusing instead on their unnatural origin, as if that origin precluded their having an important role in the ecosystem.

    Our thesis is that this view--a view that considers our manmade habitats as not worthy of protection--fails to recognize our role in habitat creation and modification, and simply does not make sense in the Age of the Anthropocene. Treating manmade features as second-class environmental habitats under this rule excludes waters that would otherwise contribute to the biological, chemical, and physical integrity of the waters of the United States. (28)

    In this Article, Part II briefly covers the statutory, regulatory, and case law background leading up to the new Clean Water Rule, with particular attention to the Supreme Court's discussion of ditches. Part III provides specific analysis of the regulation of ditches as agricultural features under the CWA. Part IV discusses the scientific rationale for protecting ditches, and Part V expands on the argument that regulators are facing resistance to employing legal tools to manage actions affecting manmade features and explains why these features must be protected to effectively address environmental degradation in the United States. Part VI concludes.

  2. BACKGROUND ON WATERS OF THE UNITED STATES

    Congress passed the CWA in its current form in 1972 to help maintain and improve the quality of the nation's waters. (29) The Act seeks "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (30) To accomplish this objective, the CWA bans the unpermitted discharge of any pollutant by any person. (31) The "discharge of a pollutant" in part means "any addition of any pollutant to navigable waters from any point source"; (32) pollutants include not just the classic pollutants like chemical wastes and sewage, but also dredged spoil and rock, sand, dirt, and other fill materials. (33) EPA holds primary authority to implement the CWA and has authority to permit discharges that would otherwise violate the Act for most pollutants. (34) The Corps, however, has primary authority to permit discharge of dredge and fill materials--that is, the filling in of wetlands and other waters--under section 404. (35) These permits are required for any discharge of dredged or fill material into "navigable waters." (36) The legal term "navigable waters" has different meanings depending on the context, such as for state title to riverbeds or for commerce." In the CWA, Congress defined the term "navigable waters" to mean "the waters of the United States, including the territorial seas." (38) EPA and the Corps understood that Congress intended this ambiguity to broaden jurisdiction beyond just those waters that were navigable-in-fact, (39) but the exact scope of jurisdiction based on this...

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