Part I - WOTUS HISTORY 101
[Note: CWA history buffs (yes, they do exist) should find this fascinating; for others,
read at your own risk, or skip to Part II.]
Day 3: In the Beginning: “And God said ‘Let the waters under the heavens be gathered together into one place, and let the dry land appear.’ And it was so. God called the dry land Earth, and the waters that were gathered together he called Seas. The Bible, Genesis 1.
Day 4 – 1898: Pre-“Legally Enforced” Era: Many “informal” activities over the centuries, including most recently by Indian tribes (tribes), the U.S. Government, the States, and others to preserve and protect the WOTUS.
1899: U.S. Statute: Rivers and Harbors Act of 1899, which focused on restricting obstructions to navigation on the nation’s major waterways. Under section 13, it is unlawful to discharge refuse into any navigable water of the United States, or into any tributary . . . . 33 U.S.C. 407.
1948: U.S. Statute: Federal Water Pollution Control Act of 1948 enacted, as amended in 1956, 1961, and 1965 (FWPCA). These early efforts sought to address interstate water pollution, encouraged pollution abatement programs, and authorized federal enforcement actions to abate water pollution.
1972: U.S. Statute: As an amendment to the FWPCA, Congress enacted the CWA, which is designed “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” A key tool is prohibiting the discharge of pollutants from a point source to “navigable waters” unless otherwise authorized. “Navigable waters” are defined as “the waters of the United States, including the territorial seas.” Thus, WOTUS establishes the geographic scope of federal jurisdiction under the CWA. WOTUS is not defined by the CWA but has been defined by EPA and the Army in regulations since the 1970s and implemented in the agencies’ programmatic activities.
1973: EPA Regulation: EPA defined “navigable waters” to include traditional navigable waters; tributaries; interstate waters; and intrastate lakes, rivers and streams used in interstate commerce. 38 FR 13528, 13528-29 (May 22, 1973)
1974: USACE Regulation: USACE defined “navigable waters” to mean those waters subject to the ebb and flow of the tide and/or susceptible for use for interstate or foreign commerce. 39 FR 12115, 12119 (April 3, 1974); 33 CFR 209.120(d)(1) (1974); see also 33 CFR 209.260(e)(1) (1974) ( “[i]t is the water body's capability of use by the public for purposes of transportation or commerce which is the determinative factor”).
1977: USACE Regulation: In response to court cases, including In Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975) (court ordered USACE to publish new, broader regulations because it held that Congress had asserted federal jurisdiction over the nation's waters to the maximum extent permissible under the Commerce Clause of the Constitution and, thus, “navigable waters” is not limited to the traditional tests of navigability), USACE issued revised regulations, which defined WOTUS to include, inter alia, “isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.” 33 CFR 323.2(a)(5) (1978); see also 40 CFR 122.3 (1979).
1985: Supreme Court Case #1: As noted by the U.S. Supreme Court in the first of three pivotal WOTUS cases, determining where water ends and land begins is no easy task: “ The transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs—in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of `waters' is far from obvious.” United States v. Riverside Bayview Homes, 474 U.S. 121, 132 (1985) (Riverside Bayview) (This case involved wetlands adjacent to a traditional navigable water in Michigan. The Court deferred to USACE finding that adjacent wetlands are “inseparably bound up with the WOTUS”, and held that “adjacent wetlands may be defined as waters under the Act.” Id. at 134, 139).
1986: USACE and EPA Regulations: USACE consolidated and recodified its regulatory provisions defining WOTUS for purposes of implementing the section 404 program. See 51 FR 41216-17 (November 13, 1986). “These regulations reflected the interpretation of both agencies. While EPA and the Corps also have separate regulations defining the statutory term “waters of the United States,” their interpretations, reflected in the 1986 regulations, have been identical and remained largely unchanged from 1977 to 2015. See 42 FR 37122, 37124, 37127 (July 19, 1977). EPA's comparable regulations were recodified in 1988 (53 FR 20764, June 6, 1988), and both agencies added an exclusion for prior converted cropland in 1993 (58 FR 45008, 45031, August 25, 1993).” 2021 Proposed Rule, p. 69378.
2001: Supreme Court Case #2: Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“ SWANCC” ). “In SWANCC, the Court held that the use of “isolated” non-navigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of federal authority under the Clean Water Act. The Court noted that in Riverside Bayview it had “found that Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands `inseparably bound up with the “waters” of the United States' ” and that “[i]t was the significant nexus between the wetlands and `navigable waters' that informed [the Court's] reading of the Clean Water Act” in that case. Id. at 16. 2021 Proposed Rule, p. 69379.
2006: Supreme Court Case #3: Rapanos v. United States, 547 U.S. 715 (2006) (“Rapanos”). Rapanos involved two consolidated cases in which the Act had been applied to wetlands adjacent to non-navigable tributaries of traditional navigable waters. All members of the Court agreed that the term “waters of the United States” encompasses some waters that are not navigable in the traditional sense. Id. at 731 ((Scalia, J., plurality opinion). A four-Justice plurality interpreted WOTUS as covering “relatively permanent, standing or continuously flowing bodies of water,” id. at 739, that are connected to traditional navigable waters, id. at 742, as well as wetlands with a “continuous surface connection” to such water bodies, id. (Scalia, J., plurality opinion). The Rapanos plurality noted that its reference to “relatively permanent” waters did “not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,” or “ seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.” Id. at 732. Justice Kennedy, in a concurring opinion, concluded that “to constitute `navigable waters' under the Act, a water or wetland must possess a `significant nexus' to waters that are or were navigable in fact or that could reasonably be so made.” Id. at 759 (citing SWANCC, 531 U.S. at 167, 172). He concluded that wetlands possess the requisite significant nexus if the wetlands “either alone or in combination with similarly situated [wet]lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable.' ” Id. at 780. Justice Kennedy's opinion notes that to be jurisdictional, such a relationship with traditional navigable waters must be more than “speculative or insubstantial.” Id. 2021 Proposed Rule, pp. 69379-69380.
2007: EPA and USACE Guidance: In EPA and USACE joint guidance (6/5/07, superseded 12/2/08), the agencies concluded that CWA jurisdiction exists if a water meets either the relatively permanent standard or the significant nexus standard.
2015: EPA and USACE Regulation: “Clean Water Rule: Definition of `Waters of the United States,' ” 80 FR 37054 (June 29, 2015). The 2015 Clean Water Rule's definition of “waters of the United States” established three categories: (A) Waters that are categorically “jurisdictional by rule” (without the need for additional analysis); (B) waters that are subject to case-specific analysis to determine whether they are jurisdictional; and (C) waters that are categorically excluded from jurisdiction. Id. at 37054. Waters considered “jurisdictional by rule” included (1) traditional navigable waters; (2) interstate waters, including interstate wetlands; (3) the territorial seas; (4) impoundments of waters otherwise identified as jurisdictional; (5) tributaries of the first three categories of “jurisdictional by rule” waters; and (6) waters adjacent to a water identified in the first five categories of “jurisdictional by rule” waters, including “wetlands, ponds, lakes, oxbows, impoundments, and similar waters.” Finally, all exclusions from the definition of “waters of the United States” in the pre-2015 regulations were retained.” 2021 Proposed Rule, p. 69381,
2019: Repeal of Clean Water Rule: “October 22, 2019, the agencies published a final rule repealing the 2015 Clean Water Rule and recodifying the 1986 regulations without any changes to the regulatory text. 84 FR 56626 (October 22, 2019).” Id.
2020: EPA and USACE Regulation: “Navigable Waters Protection Rule: Definition of “Waters of the United States” (NWPR)--that for the first time defined “waters of the United States” based generally on Justice Scalia's plurality test from Rapanos. The NWPR was published on April 21, 2020, and went into effect on June 22, 2020. 85 FR 22250 (April 21, 2020).” The NWPR interpreted the term “the waters” within “the waters of the United States” to “encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters.” Id. at 22273. Specifically, the rule established four categories of jurisdictional waters: (1) The territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than jurisdictional wetlands). Id. at 22273. The NWPR expressly provided that waters that do not fall into one of these jurisdictional categories are not considered “waters of the United States.” Id. at 22251.
2021: EPA and USACE “are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime, including the Rapanos Guidance, until further notice. The agencies are working expeditiously to move forward with the rulemakings announced on June 9, 2021, in order to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The agencies remain committed to crafting a durable definition of “waters of the United States” that is informed by diverse perspectives and based on an inclusive foundation.” EPA Website, WOTUS.
2021 Proposed Rule: “In order to ensure necessary federal protections for the nation's waters, the agencies are proposing to exercise their discretion under the statute to return generally to the familiar pre-2015 definition that has bounded the Act's protections for decades, has been codified multiple times, and has been implemented by every Administration for the last 35 years, from that of Ronald Reagan through Donald Trump, which re-promulgated the pre-2015 regulations. See In re EPA & Dep't of Def. Final Rule, 803 F.3d 804, 808 (6th Cir. 2015). The pre-2015 regulations were largely in place for both agencies in 1986 and are thus commonly referred to as ‘the 1986 regulations.’”
“[T]he agencies are exercising their discretionary authority to interpret “waters of the United States” to mean the waters defined by the longstanding 1986 regulations, with amendments to certain parts of those rules to reflect the agencies' interpretation of the statutory limits on the scope of the “waters of the United States” and informed by Supreme Court case law. Thus, in the proposed rule, the agencies interpret the term “waters of the United States” to include: Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands; most impoundments of “waters of the United States”; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and “other waters” that meet either the relatively permanent standard or the significant nexus standard. The “relatively permanent standard” means waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters. The “significant nexus standard” means waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas (the “foundational waters”). With these amendments to the 1986 regulations, the proposed rule is within the proper scope of the agencies' statutory authority and would restore and maintain the chemical, physical, and biological integrity of the nation's waters.” 2021 Proposed Rule p. 69373.