THE CLASSIFICATION OF THE HYPORHEIC ZONE UNDER THE CLEAN WATER ACT - POST RAPANOS DECISION
Open Access
- Author:
- Taptich, Michael N
- Area of Honors:
- Civil Engineering
- Degree:
- Bachelor of Science
- Document Type:
- Thesis
- Thesis Supervisors:
- Eric Todd Donnell, Thesis Supervisor
Dr. Michael Gooseff, Thesis Supervisor
Eric Todd Donnell, Thesis Honors Advisor
Patrick Reed, Faculty Reader
Peggy Ann Johnson, Faculty Reader - Keywords:
- Clean Water Act
Rapanos
Justice Kennedy
significant nexus
hyporheic
hyporheic zone - Abstract:
- Recent court proceedings have significantly altered the US Environmental Protection Agency’s and US Army Corps of Engineers’ approach to establishing jurisdictional coverage under the Clean Water Act, subsequently adding much ambiguity to the federal reaches of the Act. In <i>United States v. Rapanos </i> (2006), the Supreme Court entered a split decision regarding the merits for regulating permitted discharges under CWA Sec 404, resulting in two prominent, polar dissenting opinions offered by Justice Scalia and Justice Kennedy. Neither of the opinions in this case can reasonably be considered a subset of the other; thus, reconciliation of the previous standard has not been possible. Subsequently, lower courts are granting jurisdictional coverage under the Clean Water Act if either the requisites in Justice Scalia’s or Justice Kennedy’s opinion are satisfied. This pivotal case regarding environmental regulation has opened ‘Pandora’s box’ for jurisdictional disputes under the Act and has sparked much inquiry in the fields of stream ecology and hydrology. Hyporheic zones – ecotones where surface waters and ground waters readily mix – provide many hydrological and ecological services to their adjoined surface waters. These benefits significantly alter the chemical, physical, and biological integrity of these surface waters, establishing a ‘significant nexus’ between the hyporheic zone and its adjoining surface waters. Under the jurisdictional criteria presented in Justice Kennedy’s opinion in <i>United States v. Rapanos </i> (2006), the hyporheic zone falls within the scope of the Clean Water Act and warrants federal protection.