The federal Clean Water Act (CWA) was passed in 1972 in order to eliminate discharges of pollutants into navigable waters without a permit. The CWA tasks the EPA with prohibiting “the discharge of any pollutant” to navigable waters from any point source. The term “navigable waters” is defined as “the waters of the United States (WOTUS), including the territorial seas.”
No clarification to this phrase was given, and it was left to the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) to develop guidance and regulations defining the scope of that jurisdiction. The term itself embraced more than traditionally navigable waterways (those that are capable of use by vessels in interstate commerce), and initially, the CWA was given a broad jurisdictional reach.
Unfortunately, in the year following enactment of the CWA, the Corps and EPA used different definitions of WOTUS. After litigation in 1977, the Corps re-defined WOTUS to include all waters which could affect interstate commerce. Finally, in 1982, the two federal agencies agreed on one definition of WOTUS.
In the 1985 Riverside Bayview Homes case, the Supreme Court ruled unanimously that the Corps could regulate intrastate wetlands adjacent to navigable waters that affected interstate commerce. The Court did not make any findings on whether wetlands isolated from navigable waterways were jurisdictional. After this ruling, the Corps and EPA began to use a clarification termed the “Migratory Bird Rule” to extend jurisdiction to isolated waters and wetlands, arguing that areas “which are or would be used as habitat by… migratory birds that cross state lines” could affect interstate commerce, and thus were jurisdictional.
In 2001, the Supreme Court struck down the Migratory Bird Rule in a case commonly referred to as SWANCC by a 5-4 split. The Court held that extending jurisdiction over these isolated wetlands exceeded the agencies’ authority. Specifically, the Court said that the ponds that had formed in the abandoned gravel pit at issue in the case lacked the necessary “significant nexus” to traditionally navigable waters necessary for jurisdiction under the CWA.
Post-SWANCC, the agencies issued guidance concluding that they could exercise jurisdiction over isolated waters if the use, degradation, or destruction of these isolated waters could affect WOTUS. In other words, if the potential existed to adversely affect jurisdictional waters, there was a significant nexus to extend jurisdiction to these waters.
Things came to a head in 2005, when the Supreme Court heard the Rapanos case; at issue was whether the Corps could exert jurisdiction over non-navigable wetlands that did not abut navigable waters. A 4-1-4 plurality decision resulted in two alternative tests: one authored by Justice Scalia, and one authored by Justice Kennedy. The two tests were:
Scalia test: The word “waters” in “waters of the United States” means only “relatively permanent, standing or continuously flowing bodies of water”—that is, streams, rivers, and lakes. Wetlands could potentially be included, but only when they have a “continuous surface connection” to other “waters of the United States.”
Kennedy’s “significant nexus” test: if the wetland or water at issue possesses a “significant nexus” to waters that are navigable-in-fact, they are jurisdictional. A wetland has a significant nexus to navigable-in-fact waters when the wetland significantly impacts the chemical, physical, and biological integrity of a traditionally navigable waterbody.
In response, the agencies issued guidance in 2008 that the wetlands or waters are jurisdictional if they satisfied either of the two tests. This did nothing to clarify the muddy situation, and on May 27, 2015, after extensive scientific review and a massive public comment process, they issued the Clean Water Rule. The Clean Water Rule expanded jurisdiction over current waters and wetlands by 2.84% to 4.65%. The Rule was supposed to take effect on August 28, 2015, but 13 states filed suit. Ultimately, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay, and the Rule never really went into effect. However, in 2018, the U.S. Supreme Court held that challenges to the Clean Water Rule must be heard in federal district courts, not appellate courts. As of December 2018, district courts have stayed the Rule in 27 states.
Trump’s plan to repeal and replace the Clean Water Act would settle the definition of “navigable waters” in line with Scalia interpretation, which would remove clean water protections from much as 60% of U.S. waters and wetlands.
Past Presidents’ Words
|President Nixon||“…wetlands are vital…they [serve] important function[s]…”environmentally critical.”|
|EPA Administrator Train (under President Ford)||“…valuable…”|
|President Carter||“…vital natural resources of critical importance…”|
|President Reagan||“…broad international recognition of the economic, cultural, scientific, ecological, and recreational value of wetlands…”|
|EPA Assistant Administrator for Water Jensen (under Reagan)||“…among the most fertile and productive ecosystems on earth…[w]etlands must join the list of resources vital to man.”|
|President George H.W. Bush||“I am pleased to sign into law…the North American Wetlands Conservation Act…[to] renew…that noble commitment to improve environmental quality for all our people.”|
|President Clinton||“The economic importance of wetlands to commercial fisheries and recreational uses is…enormous.”|
|EPA Administrator Browner (under President Clinton)||“…America’s …wetlands…are among this country’s most valuable natural resources.”|
|EPA Administrator Johnson (under President George W. Bush)||“Wetlands provide numerous ecological and economic services: they help to improve water quality; recharge water supplies; reduce flood risks; provide fish and wildlife habitat…and support valuable fishing and shellfish industries.”|
|President Obama||“…wetlands…form the foundation of our nation’s water resources.”|
|President Trump||“…a disaster…nearly every puddle or every ditch…EPA [made a] massive power grab…EPA’s regulators were putting people out of jobs by the hundreds of thousands…[t]hey treated them horribly. Horribly.”|