A 50-Year Debate: Defining "Waters of the U.S"

Which Waterways Qualify For Federal Oversight? We Are Still Waiting To Find Out....

Supreme Court photo by Ian Hutchinson/Unsplash

What are the “waters of the United States?” It’s a definition that’s been 50 years in the making.

The U.S. Supreme Court has agreed to hear arguments this fall in the case of Sackett v. Environmental Protection Agency, which once again tries to define the “waters of the United States” (WOTUS) under the Clean Water Act.

In order to understand the significance of this news, you first have to understand the Clean Water Act (CWA).

In 1972, Congress passed the CWA to protect large bodies of water such as streams, rivers, and bays from being destroyed by things like sewage, biological and radioactive waste, and industrial and agricultural waste. We needed it then and we need it now.

The Clean Water Act prohibited “the discharge of any pollutant by any person,” without a permit, into “navigable waters.”

The law established a structure for regulating pollution of “navigable waters,” which Congress defined simply as “waters of the United States.” Both the U.S. EPA and the Army Corps of Engineers are responsible for enforcing the Act’s provisions.

Originally, the CWA was a strong law to help regulate water pollution. It gave the EPA authority to set water quality standards and implement pollution control programs, funded the construction of more sewage treatment plants, and even recognized the need to address non-point source pollution from agricultural sources like fertilizers and pesticides along with urban runoff. The law called for polluters to disclose the toxins they dumped into waterways and gave regulators the power to go after offenders with fines or jail time.

Good laws can be written, but they can also be hard to follow. Since the 1970s, pollution has only increased, and violations of the law have continued to rise. Between 2004 and 2009, the Act was violated more than half a million times, and most of the big polluters evaded any kind of punishment. As you can imagine, without much recourse the violations keep piling up.

But isn’t the law meant to protect us? How can these violations continue?

Sadly, the courts left us hanging for many years.

Specifically, a Supreme Court ruling from 2006 was just confusing. In Rapanos v. United States, the Court failed to clearly define which waterways qualify for federal oversight. The ambiguity has played out for years and ultimately left too much legal room for disputes, allowing polluters to dump carcinogenic chemicals and more without much worry about federal enforcement.

In Jonathan Thompson’s recent analysis for High Country News, he writes about late Justice Antonin Scalia’s 2006 definition of WOTUS:

In a plurality opinion on Rapanos v. United States, Scalia wrote that waters of the U.S. include only “those relatively permanent, standing or flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers and lakes” and not “dry arroyos in the middle of the desert.”

Scalia’s definition potentially would remove federal protections from more than 75 percent of the rivers and streams in the arid Southwest, including New Mexico’s Rio Puerco and Santa Fe River, Arizona’s Santa Cruz River, numerous tributaries to the Los Angeles River, and thousands of other ephemeral or intermittent streams, despite their ecological significance and the fact that they run bigger than most “real” rivers after a good rain.

Previous Definitions

In 2015, President Barack Obama with help from the EPA and the U.S. Army Corps of Engineers finalized the Clean Water Rule to help clear up the confusion about which bodies of water the federal government could regulate. It clarified that smaller and more isolated waters like streams and lands could fall under federal authority.

However, the rule never really went into effect because of a lawsuit.

While the Trump administration vowed to promote clean water, there was also a desire to roll back regulations and restrictions by narrowing the scope of the Clean Water Rule.

In February 2017, President Trump signed an executive order instructing the EPA and the Army Corps of Engineers to review and rewrite the Clean Water Rule and reassess whether the rule is consistent with promoting economic growth and minimizing regulations. The order wasn’t enough to reverse the law. But on October 22, 2019, the EPA and the Department of the Army published a final rule repealing the 2015 Clean Water Rule and restoring the prior regulatory text.

At the time Jon Devine, director of federal water policy at the Natural Resources Defense Council said, “This unsubtantiated action is illegal and will certainly be challenged in court.”

What’s At Stake

The Sackett case going back to the Supreme Court later this year originated in 2007 when Michael and Chantell Sackett backfilled parts of their .63-acre lot along the shore of Idaho’s Priest Lake to build a home. A few days later, EPA officials ordered them to stop work because the land contained wetlands—or WOTUS. A permit was required but the Sacketts decided to sue.

Their case went all the way to the Supreme Court in 2012, but justices end up deciding whether the federal agency’s compliance orders were subject to judicial review, not defining waters of the U.S. The Court ruled in the Sacketts’ favor and the case went back through the Idaho courts.

Meanwhile, the EPA and the U.S. Army Corps of Engineers have continued working on a proposed rule to revise the definition of WOTUS, looking to expand protection the Clean Water Act in an attempt to undo Trump-era rollbacks.

“The Army recognizes the importance of our nation’s water resources and the role water plays in our communities across the nation,” said Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham in a statement last November. “We remain committed to working with EPA to develop a rule that is informed by our experience and expertise, as well as that of our co-regulators, is mindful of implementation practices, and is shaped by the lived experience of local communities and stakeholders.” 

Questions remain as to whether the Supreme Court should weigh in on Sackett v. EPA, while a new definition is being crafted by the agencies tasked with enforcing the law.

As Thompson points out in his HCN piece, the decision on definitions is also a ruling on the reach of federalism and states’ rights. The justices could put the fate of hundreds of waterways and wetlands with state vs federal oversight.

At The State Level

In late February 2022, the EPA and U.S. Department of the Army announced the selection of ten geographically varied roundtables with participants representing diverse perspectives to facilitate discussion on implementation of WOTUS.

U.S. EPA @EPA

EPA is committed to listening to diverse perspectives and fostering a common-ground approach when it comes to protecting our waters. Together with @USArmy, we are hosting 10 roundtables across the country to hear from communities on the ground on #WOTUS. epa.gov/newsreleases/e…

To learn more, go to: www.epa.gov/wotus

One of the first roundtable discussions took place this week in Alaska.

WOTUS has a significant impact on Alaska, which has more than 12,000 rivers, three million lakes, and close to 180 million acres of wetlands—more than the rest of the country combined.

At the roundtable discussion, U.S. Senator Lisa Murkowski and a range of state officials, led by Alaska Department of Environmental Conservation Commissioner Jason Brune, and industry stakeholders emphasized their preference for a locally tailored WOTUS definition and regulation that will not delay or raise costs for economic development projects.

“This decade-long game of regulatory ping pong has failed to provide the clarity and certainty that states like Alaska need and depend on from the executive branch, she said in a statement. “Meanwhile, the latest rule is the most expansive yet, would have its own consequences for Alaska, and has left almost no one satisfied.”

In February 2022, Murkowski joined all of her Republican Senate colleagues in calling on EPA and the Army Corps to halt their work on a new WOTUS rule until after the Supreme Court has ruled on Sackett v. EPA.

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What do you think? Should we let states define and regulate WOTUS or should federal agencies continue to fight for stricter regulations to reduce pollution? Let us know in the comments below.