On February 28, President Trump issued Executive Order (EO) Number 13778, ordering the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) to review their current regulatory definitions of “waters of the United States” – sometimes called “navigable waters.” (I blogged about this definition here). The EO strongly points toward a narrower definition that would reduce the agencies’ jurisdiction, reversing rules issued in 2015 during President Obama’s administration.
How Has the Supreme Court Defined “Waters of the United States”?
This definition bounds EPA’s legal authority under the Clean Water Act (CWA) to regulate quality planning and discharge regulation. It also bounds the Corps’ authority to require “dredge and fill” permits for projects that may affect waters – including projects that fill wetlands.
CWA provides no definition of this critical term, leaving agencies and courts to define and apply the term, and thereby to define their authority to control actions that affect water quality. After CWA was adopted in 1972, courts and agencies determined that this term extended beyond waters that actually are or can be navigated by vessels in interstate commerce, to include tributaries and connected waters. In 2001, and again in 2006, however, the U.S. Supreme Court issued decisions eliminated some types of water bodies from CWA control, and cast others into ambiguous status. First, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers [SWANCC], the Court ruled that the Corps lacks jurisdiction over “isolated” waters and wetlands that are not “adjacent” to navigable waters – such as “prairie potholes,” mudflats, and freshwater seasonal ponds). Then, in Rapanos v. United States, a fractured Court ruled 4-1-4 on the definition of when a wetland is part of waters of the US:
Justice Scalia wrote a decision for a total of four justices, finding that the “only plausible interpretation [of[ 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.’ He excluded channels through which water flows intermittently or ephemerally, such as drainage for rainfall (which might become conduits for discharges into such waters, but are not part of the waters themselves).
Justice Kennedy concurred in that decision, but added caveats including waterways with intermittent flow, and those with a “significant nexus” with the waters accepted by the plurality. These quibbles added flexibility, but also uncertainties that would require some case-by-case evaluations. Because Justice Kennedy’s views are necessary to reach 5 justices for a majority, many practitioners began to incorporate them into project reviews.
Justice Stevens wrote a dissent opining that “adjacent” waters should be included, and Justice Breyer would have extended the term to include any water that could be considered a part of interstate commerce (i.e., reachable by Congressional Commerce Clause authority).
What Did EPA and the Corps Determine During President Obama’s Administration?
EPA and the Corps spent a decade attempting to parse the ambiguities in those decisions, and to re-establish predictable controls over water-affecting actions. Not surprisingly, the agencies interpreted the Supreme Court’s guidance in ways that tended to maximize their authority. My 2015 blog describes the agencies’ determinations in detail, but in summary they incorporated Justice Kennedy’s application of intermittent waterways, and also incorporate and attempted to define those with a “significant nexus.”
The agencies were sued to block their expansive definitions, and the effectiveness was deferred pending resolution of the court case. The last such deferral was issued by the Supreme Court itself, not long before Justice Scalia’s death in 2016.
To oversimplify: would-be developers, property rights advocates and many Republicans have argued for narrower definition of “waters of the U.S.,” while environmental advocates and many Democrats have argued for definition no narrower than the ones adopted in 2015.
What Has President Trump Ordered?EO 13778 orders EPA and the Corps to review their 2015 final rules, and any orders and rulings derived from them, consistent with the following guidance:
General policy: “It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.”
Definition: “consider” interpreting the critical term “navigable waters” consistent with Justice Scalia’s decision in Rapanos, i.e., without intermittent waterways and not to include waters or wetlands that do not meet the adopted definition on their own but do present a “significant nexus” with qualifying waters.
Does my organization routinely discharge wastewaters:
Into a natural water body.
Into an artificial conveyance (ditch, storm sewer, etc.).
Into a sanitary sewer system.
Does my organization operate a facility where rainwater or snowmelt might flow:
Onto a natural water body.
Into an artificial conveyance (ditch, storm sewer, etc.).
Is my organization undertaking a construction or other project that disturbs a waterway, or disturbs soil or rock that might contaminate runoff into a waterway?
Has my organization evaluated the receiving waters to determine whether they qualify as “waters of the United States” subject to CWA requirements?
Under the definitions included in the May 2015 regulation
Under the definition provided by Justice Scalia in Rapanos
Where Can I Go For More Information?
EPA webpage for rulemaking and new rule
Corps webpage for rulemaking and new rule
EO 13778 (3/3/17 Federal Register)
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: firstname.lastname@example.org