Proposed Regulations Could Mean Fewer Protections For Some Louisiana Wetlands

Dec 20, 2018

The Trump administration is proposing changes to how a big environmental law -- the Clean Water Act --  is enforced. That could have implications for many of Louisiana’s wetlands, and the state’s efforts to restore the eroding coast.

 

To better understand what the proposed changes could mean for Louisiana, WWNO’s Travis Lux spoke with water law expert Mark Davis, who leads the Tulane Institute on Water Resources Law and Policy.

 


The interview transcript below has been edited for clarity.

 

Q: Let’s start with the Clean Water Act (CWA), which was passed by congress back in 1972. It established laws about pollution in our waterways. What did that change at the time?  

 

The CWA really changed the way we manage our nation’s water resources. Wetlands, for example, were not really a feature of American water policy at that point.

 

Q: They weren’t considered waterways?

 

They were generally not considered waterways. And also things that happened in one state that could affect another. Those were not easily handled under the law prior to 1972. And that’s really what this Waters of the United States Rule is focusing on.

 

If I’m going to dump a load of bricks or dirt --  or maybe I’m the State of Louisiana and I want to do a coastal restoration project -- do I need permission to do that? The Clean Water Act made those things subject to regulation.

 

Q: There’s been some confusion along the way, especially around the term “waters of the United States.” What are “waters of the United States?” Are they streams, rivers, lakes? What about a stream that just fills up when it rains?

 

It’s come to the Supreme Court a few times. The Obama administration expanded that definition, and the Trump administration is now making some changes, too. What is the Trump administration proposing?

 

The Trump administration is proposing a narrowing of the definition of “waters of the United States.” And they’re very upfront about that.

 

Q: What about here in Louisiana? Would that change which wetlands are considered “waters?”

 

The way we read it, it can. Even though they’re trying to come up with rules that are clear and easy for anyone to understand -- I’m not sure they’ve gotten there. They’re really asking for comments and things like that.

 

But the two things I think are most important from Louisiana’s standpoint is they’re proposing to do away with the idea of interstate waters being jurisdictional as “waters of the United States” -- irrespective of things like navigability.

 

The other is wetlands that are not adjacent to a navigable stream or jurisdictional water. And that includes impounded wetlands.

 

Q: What does that mean?

 

If you build a wall around wetlands, they can be outside of the protection zone.

 

Q: So like a levee?

 

A levee -- and we’ve got a lot of them. Some of them are private, some of them are public. Here in New Orleans, but we also have walls around Bayou Sauvage National Wildlife Refuge. It’s 25,000 acres of, I think, what everyone would say, “that’s wet.”

 

Well, a literal reading suggests that might not be jurisdictional - meaning, it would not be covered by the Clean Water Act, and so if you wanted to go in and fill something there, you could. And keep in mind, Bayou Sauvage was not originally a national wildlife refuge. It was supposed to be houses. So, places like that were exactly what the Clean Water Act was able to come in and help protect.

 

Q: What about coastal restoration in the state? Could it make it more difficult or easier to do coastal restoration?

 

I don’t think it’s going to have a huge effect on restoration activities. I think by and large those are still going to be covered. By the permitting process. Where it gets trickier is when you’re trying to conserve wetlands. That’s the first goal: don’t lose what you’ve still got.

 

If areas that are impounded are no longer protected, then you can have more pipelines, there will be no mitigation. A lot of the things we’re counting on to balance the restoration program might not be there anymore.

 

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