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Title: Potential implications of approaches to climate change on the Clean Water Rule definition of “waters of the United States”

item FAUST, DEREK - Mississippi State University
item Moore, Matthew
item EMISON, GERALD - Mississippi State University
item RUSH, SCOTT - Mississippi State University

Submitted to: Bulletin of Environmental Contamination and Toxicology
Publication Type: Review Article
Publication Acceptance Date: 3/9/2016
Publication Date: 4/18/2016
Citation: Faust, D.R., Moore, M.T., Emison, G.A., Rush, S.A. 2016. Potential implications of approaches to climate change on the Clean Water Rule definition of “waters of the United States”. Bulletin of Environmental Contamination and Toxicology. 96(5):565-572.

Interpretive Summary: Scientists are now beginning to frame their research questions, as well as proposed policy statements from the position of potential effects of climate change. The proposed "Waters of the United States" rule was described and scenarios were provided as to how climate change might affect the proposed rule. Four potential options for action on the rule were outlined and debated. Regardless of the government's decision, the approach should be one which is both legally defensible and environmentally sound.

Technical Abstract: Within the Clean Water Act of 1972, several terms were used to describe what waters would be legally protected under the act, including “waters of the United States.” However, these terms were not specifically defined within the act, and the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) had to interpret Congress’ intent for regulatory purposes. The regulatory definition has changed through interpretation of Congress’ intent in several Supreme Court cases, resulting in among stakeholders. As such, the EPA and Corps proposed a “waters of the United States” rule in April 2014. We describe the history of the “waters of the United States” rule, identify implications that climate change could have on the proposed rule, and propose and evaluate approaches to address these implications. Four approaches to handle implications of climate change on the proposed rule are: (1) “Wait and see”; (2) immediate change to the rule; (3) guidance documents; and (4) act of Congress defining “waters of the United States.” The approach chosen should be legally defensible and achieved in a timely fashion to provide protection to waters of the United States in proactive consideration of scientifically documented effects of climate change on aquatic ecosystems.