Water Resources - IMPACT - January 2018 - 24

The continued success of the restoration
of the quality and integrity of the
freshwater resources of the United
States needs a holistic approach.

The nation reached a crunch point in the
1860s when great forces tested this model
as efforts to cast out the nation's "original
sin" of slavery led to a constitutional,
political and national crisis never seen
before or since in the Civil War. The
outcome and legal aftermath of the war led
to a diminishment of states' rights and the
arguments for them being preeminent in
the U.S. system.
After the Civil War, the federal
government began taking on new duties
and responsibilities with regard to the
natural resources of the United States.
Preservation and conservation started in
the 1870s and turn of the 20th century
respectively, regardless of state or territory.
The first and foremost emphasis for these
laws was on federal lands, but the impact of
many of the policies and laws carried over
into the states.
In 1899, the federal government decided
that macro-pollution (e.g. sediment,
wrecks, debris etc.) flowing into harbors
and rivers threatened the navigability of
these bodies. Congress passed the Rivers
and Harbors Act of 1899 authorizing the
Army Corps of Engineers to maintain
navigability in the waters of the United
States. This cemented a long held principle
that governance of navigable waters, at least
in part, fell within the Jurisdiction of the
federal government.
During both of the Roosevelt
administrations (Teddy and FDR),
the reach and scope of federal actions
regarding to the water resources of the
nation greatly expanded. With the backing
of key components of U.S. common and
constitutional law - such as the public trust
doctrine (which requires governments to
steward non-land natural resources for
the use and enjoyment of both current
and future generations), the commerce
clause (which requires that the federal
government protect and regulate commerce

24 * Water Resources IMPACT

January 2018

among the states, with foreign powers and
with Native American groups), and the
police powers (which require and empower
governments to protect public health,
safety, morals and the general welfare) -
the federal government developed a broadbased concept of how far their power to
administer and regulate reached. By the
time of the ecological/environmental crisis
of the 1960s and 1970s, water quality was
so threatened nationally that the federal
government took over regulation and
coordination of environmental pollution
control through the Clean Water Act and
other statutes.
From the start, states and private
interests pushed back against these laws
and their reach, but the degradation
of key resources such as Lake Erie, the
Cuyahoga River and water resources
throughout the nation, to the point where
they presented threats to human health
and environmental well-being, made
objections unsuccessful. It was generally
viewed that the states had failed in their
duties to protect these resources and that
private economic interests had degraded
public resources without regard to the
consequences. Federal reach, in terms
of what was considered the waters of the
United States, was never more extensive.
Starting in the 1980s and accelerating
through the 1990s and 2000s, legal
challenges to the scope/reach of federal
authority became more numerous and
eventually successful. Claims of overreach
and the usurpation of state authority and
private property rights shrank the ability
of federal protections to be extended
to the full extent of surface hydrologic
formations, i.e., watersheds.
The challenges were, in large part,
that the federal government had claimed
jurisdiction based on exaggerated claims
of navigability. The problem which
underlies the challenges is that they were

at odds with the reality of natural laws/
principles, such as those expressed by
Barry Commoner in his four "laws of
ecology": 1) Everything is connected to
everything else; 2) Everything must go
somewhere; 3) Nature knows best; and 4)
There is no such thing as a free lunch. The
best way to protect environmental quality
of water resources is holistically, taking
into account and protecting the whole of
the resource. States have failed to do this
effectively in the past because of parochial
interest and limited scope of authority.
More than 50% of historical wetlands were
lost under state supervision and almost all
major bodies of water were significantly
degraded. States' rights arguments don't
meet the test of practical experience. The
Supreme Court ultimately ruled in favor
of parties challenging the reach of federal
jurisdiction based on navigability.
In response to United States vs.
Riverside Bayview Homes, Inc.; Solid
Waste Agency of Northern Cook County
vs. United States Army Corps of Engineers
et al; Rapanos et ux., et al. vs United States
and subsequent cases, first the Clinton and
then the Obama administration engaged
in significant efforts to restore the scope
of federal reach by codifying the "Waters
of the United States" (WOTUS) in the U.S.
Regulatory Code based on a broader set of
underlying legal authorities including the
public trust doctrine, police powers and
the commerce clause of the Constitution.
Under the Obama administration, the
full regulatory process including judicial
review was completed with the new
WOTUS rule going through the final
period before implementation.
The current administration, arguing
for states' rights, pulled the regulation
before implementation promising a restart
of the rulemaking process. This has yet
to emerge. The continued success of the
restoration of the quality and integrity
of the freshwater resources of the United
States needs a holistic approach. The slow
but steady progress that has taken place
over the past almost 50 years is threatened.
This writer believes that the WOTUS rule
must be fully restored to allow continued
restoration of the nation's waters. ■
Eric Fitch can be reached at
fitche@marietta.edu.



Table of Contents for the Digital Edition of Water Resources - IMPACT - January 2018

President’s Message
The National Water Model Vision
Transforming NOAA Water Prediction: The New National Water Model
Perspectives on the National Water Model
FloodCast: A Framework for Enhanced Flood Event Decision Making for Transportation Resilience
Hurricane Harvey and the National Water Model
Contributions of the Academic Community in Advancing the National Water Model
Turning on the Faucet: Making National Water Model Data Flow
The New Economics of Water: Balancing Urban and Agricultural Water Needs on Colorado’s Front Range
What’s Up with Water: United We Stand, Divided We Fall: States Rights and WOTUS Rule
International Conference Recap
AWRA State Section and Student Chapter News
December JAWRA Highlights
In Memoriam: Ari Michelsen
2018-2019 Richard A. Herbert Memorial Scholarship Opportunities
AWRA Board of Directors 2018 Call for Nominations
Water Resources - IMPACT - January 2018 - Intro
Water Resources - IMPACT - January 2018 - cover1
Water Resources - IMPACT - January 2018 - cover2
Water Resources - IMPACT - January 2018 - 3
Water Resources - IMPACT - January 2018 - 4
Water Resources - IMPACT - January 2018 - President’s Message
Water Resources - IMPACT - January 2018 - The National Water Model Vision
Water Resources - IMPACT - January 2018 - 7
Water Resources - IMPACT - January 2018 - Transforming NOAA Water Prediction: The New National Water Model
Water Resources - IMPACT - January 2018 - 9
Water Resources - IMPACT - January 2018 - Perspectives on the National Water Model
Water Resources - IMPACT - January 2018 - 11
Water Resources - IMPACT - January 2018 - FloodCast: A Framework for Enhanced Flood Event Decision Making for Transportation Resilience
Water Resources - IMPACT - January 2018 - 13
Water Resources - IMPACT - January 2018 - Hurricane Harvey and the National Water Model
Water Resources - IMPACT - January 2018 - 15
Water Resources - IMPACT - January 2018 - 16
Water Resources - IMPACT - January 2018 - Contributions of the Academic Community in Advancing the National Water Model
Water Resources - IMPACT - January 2018 - 18
Water Resources - IMPACT - January 2018 - Turning on the Faucet: Making National Water Model Data Flow
Water Resources - IMPACT - January 2018 - 20
Water Resources - IMPACT - January 2018 - The New Economics of Water: Balancing Urban and Agricultural Water Needs on Colorado’s Front Range
Water Resources - IMPACT - January 2018 - What’s Up with Water: United We Stand, Divided We Fall: States Rights and WOTUS Rule
Water Resources - IMPACT - January 2018 - 23
Water Resources - IMPACT - January 2018 - 24
Water Resources - IMPACT - January 2018 - International Conference Recap
Water Resources - IMPACT - January 2018 - AWRA State Section and Student Chapter News
Water Resources - IMPACT - January 2018 - December JAWRA Highlights
Water Resources - IMPACT - January 2018 - In Memoriam: Ari Michelsen
Water Resources - IMPACT - January 2018 - 2018-2019 Richard A. Herbert Memorial Scholarship Opportunities
Water Resources - IMPACT - January 2018 - AWRA Board of Directors 2018 Call for Nominations
Water Resources - IMPACT - January 2018 - cover3
Water Resources - IMPACT - January 2018 - cover4
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