The Federal Water Pollution Control Act (“Clean Water Act”) was passed in 1972. It was estimated that, at the time of its passage, over 60% of the nation’s waters had become unsafe for fishing or swimming. The stated goal of the Clean Water Act (“CWA”) was to reduce pollution and restore the biological, chemical and physical integrity of our nation’s waters. The law sought to achieve a zero discharge of pollutants into “navigable waters” by 1985 and fishable and swimmable waters by 1983. A noble goal indeed, and, while great strides have been made towards restoring our nation’s waters, we have not achieved the goals of the CWA. This short article is focused on the controversy surrounding the definition of “waters of the United States” in an attempt to explain the issue in an abbreviated, nontechnical manner.

The CWA uses the term “navigable waters” and subsequently defines that term as “waters of the United States, including the territorial seas”. This definition has led to a great deal of confusion and litigation concerning the extent of CWA jurisdiction. The issue came to a head with the extension of jurisdiction over isolated “waters” and wetlands.

In 1986, the Army Corps of Engineers (“ACOE”) and the United States Environmental Protection Agency (“EPA”) (“Agencies”) sought to justify their expansion of CWA jurisdiction using the Migratory Bird Rule which asserted that CWA jurisdiction, could be extended to isolated, intrastate, non-navigable waters based on a finding that threatened or endangered species, or birds protected under the Migratory Bird Treaty Act use the water as habitat, or the water was used to irrigate crops sold in interstate commerce. The Supreme Court in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers (2001)(“SWANCC”) struck down the Migratory Bird Rule and concluded that the Agencies could not exert jurisdiction over isolated, intrastate, non-navigable waters, where the sole basis for asserting jurisdiction were the factors listed under the Migratory Bird Rule.

The Agencies, however, continued to exert jurisdiction over isolated waters and wetlands. Evan after SWANCC, Agency personnel repeatedly asserted that, for purposes of exercising CWA jurisdiction, the presence of water is irrelevant. EPA had taken the position that they only needed look at a topographical map to establish whether a geographic feature constituted a jurisdictional tributary or drainage feature. In more than one instance, in the western United States, this analysis lead the Agency to attempt to exercise jurisdiction over drainage features which did not contain flowing water, have not contained any flowing water in recorded history, or, when water was present, that water never flowed to any relatively permanent body of water.

Then, in another challenge to Agency jurisdiction, The Supreme Court in Rapanos v. United States (”Rapanos”) left us with essentially two different approaches to defining the limits of Agency jurisdiction. Justice Antonin Scalia authored an opinion, in which he was joined by Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito; Chief Justice Roberts wrote separately and criticized the ACOE for refusing to publish guidance on the scope of its power after SWANCC; and Justice Kennedy wrote a separate concurring opinion. This plurality created confusion because no single opinion received the support of a majority of the court.

For simplicity’s sake I will refer to the approaches by their authors.

The “Scalia Approach” is the most restrictive, stating that “the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as “streams[,] … oceans, rivers, [and] lakes (emphasis added)”. Furthermore, the “phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall”. Justice Scalia then concluded that “[t]he Corps’ expansive interpretation of the “the waters of the United States” is not based on any permissible construction of the the CWA (emphasis added).” Under the Scalia Approach, the CWA, in its current form, is not an appropriate vehicle for the regulation of isolated waters and wetlands, intermittent streams, ephemeral streams and drainage ditches.

The “Kennedy Approach” is an attempt to reconcile the intent of Congress with the permissible scope of CWA jurisdiction. Under the Kennedy Approach, these features would only become jurisdictional if, “alone, or in combination with similarly situated lands in the region, they significantly affected the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense”. Justice Kennedy went on to state that if the “effects on water quality are speculative or insubstantial”, the features would fall outside of the definition of “navigable waters.” Justice Kennedy concluded that the Agencies must establish a significant nexus, on a case-by-case basis, when seeking to regulate wetlands based on adjacency to non-navigable tributaries in order to avoid an unreasonable application of the CWA.

So what were the Agencies trying to accomplish? In short, environmental protection. The Agencies have long recognized the environmental and economic values of wetlands. The Agencies are also well aware that dry drainage ditches, intermittent streams and ephemeral streams can, under appropriate physical and climatological conditions, act as a conduit for the transportation of contaminants to navigable waters. So, in order to effectuate the goal of the CWA (i.e. pollution reduction and the restoration of the biological, chemical and physical integrity of our nation’s waters) the Agencies sought to expand their jurisdiction under the CWA. In so doing, they repeatedly exceeded their authority.

In response to the Supreme Court rulings, the Agencies issued a clarifying regulation on June 29, 2015. The “Clean Water Rule” (“Rule”) stated a new detailed definition of “waters of the United States” and in many respects continued the Agencies’ jurisdictional overreach. Thirteen states sued, and U.S. Chief District Judge Ralph R. Erickson in the Federal District Court for the District of North Dakota issued an injunction in August 2015, blocking the Rule in those states that had filed the appeal. In a separate case, on October 9, 2015, the Sixth Circuit Court of Appeals stayed the Rule’s application nationwide. Congress then passed a joint resolution under the Congressional Review Act overturning the Rule which was subsequently vetoed by President Obama.

On February 28, 2017, President Trump issued an Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” (“Executive Order”). In essence the Executive Order requires the Agencies to review the final Rule to ensure that it is consistent with the national interest of keeping the Nation’s navigable waters free from pollution, while at the same time promoting economic growth and minimizing regulatory uncertainty. The Agencies have also been directed to review, remand and revise, any orders, rules, regulations, guidelines, or policies implementing or enforcing the Rule. In reviewing the Rule, the Agencies have been directed to “consider” (emphasis added) interpreting the term “navigable waters”, in a manner consistent with the Scalia Approach in Rapanos.

It will be interesting to see how the Agencies respond to this directive. Given that it took the Agencies nearly a decade after Rapanos to promulgate this new Rule, we may not see regulatory clarification for sometime.