Waters of the United States -round 5

Under the Clean Water Act, Congress explicitly directed the Agencies to protect “navigable waters.” Under the Clean Water Act, “the discharge of any pollutant by any person shall be unlawful.” 33 U. S. C. § 1311(a). “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12).

The Clean Water Act (CWA) of 1972 made it a crime to discharge pollutants from any point source into the "navigable waters of the United States." However, the U.S. EPA has continually tried to expanded what constitutes a "pollutant" or "navigable water" over the years as the understanding of how connected all waters are. Especially in this century, the U.S. EPA attempted to manage new problems by expanding the reach of old laws utilizing regulation rather than new laws.

Wetlands are important green infrastructure; among other functions, they are essential to clean water because they remove sediments and pollutants, including chemicals and excess nutrients from fertilizers, sewage discharges, and other sources. Wetlands provide habitat for migratory birds and food and essential habitat for many species of fish, shellfish, shorebirds, waterfowl, and furry creatures. Wetlands need to be protected but stretching the Clean Water Act may not be the way to do it.

In 2006 the Supreme Court split a ruling in which justices could not agree on the vague definitions within the act. Their decision added to the confusion when the opinion was split. A plurality of justices, in an opinion written by Justice Antonin Scalia, found that a “continuous surface connection” was the test to define a wetland to find protection under the Clean Water Act. But a separate opinion, by Justice Anthony Kennedy, found there needed to be a “significant nexus” to navigable waters, which means that if there wasn’t an obvious surface connection, research was needed to show that the wetlands played a role in assuring the integrity of the larger body of water, for wildlife habitat or for other ecological value.

Neither opinion held a majority. This lack of clarity has meant the protection of U.S. wetlands has been uneven. Those with a direct connection to navigable waters have largely been protected by the EPA and the U.S. Army Corps of Engineers or had their development somehow mitigated by other regulations like Virginia’s Chesapeake Bay Protection Act. Wetlands without a direct connection to navigable waters have been protected in some places and not in others.

In 2015 President Obama’s administration tried to administratively broaden the definition of navigable waters of the United States. This rule contained the definition of “waters of the United States” to include streams and wetlands and any body of water that the EPA previously needed to determine to be a “significant Nexus” to the “navigable waters of the United States” on a case by case basis. According to that version of the waters of the United States definition included navigable waterways and their tributaries, streams, regardless of their size of frequency of flow, wetlands and open waters in riparian areas and the 100 year floodplains.

The 2015 version of the Water of the United States rule unleashed a torrent of Federal litigation. Thirty-one states, many local governments, and private industry filed suite asserting that the rule unconstitutionally expanded the Clean Water Act’s reach and misapplied several Supreme Court decisions and long standing practice. Various Courts of Appeal challenges were consolidated before the Sixth Circuit in Cincinnati, which granted a nationwide wide stay in November 2015.

With that stay still in place the Trump administration withdrew the rule. On January 23, 2020, the U.S. EPA and the Department of the Army (Army) released their Navigable Waters Protection Rule to define “waters of the United States” (WOTUS). Restored what could be regulated under the law to point source pollution discharge into rivers, lakes, streams and adjacent wetlands.

Last fall the Supreme Court agreed to hear the Sackett case(Part 2).   The upcoming Supreme Court decision could finally settle that ambiguity and bring major changes to how wetlands are managed in the U.S. Concerned that this case could significantly reduce the number of wetlands that would be protected under the Clean Water Act, the EPA release a new definition of Waters of the United States that sits somewhat between what the EPA tried to achieve under President Obama and what the agency tried under President Trump. You can read the details here. Revised Definition of "Waters of the United States" (epa.gov)

The Supreme Court decision in the Sackett case is expected next spring or early summer. I am not convinced that this issue falls along conservative or progressive lines so we could be surprised. However, whatever the outcome there needs to be a reasonable, obvious and consistent standard for navigable waters of the United States to protect them from industrial and waste water discharge, but wetlands, too, need to be protected.

The proper way to protect the wetlands and seasonal streams that we now understand are so essential to a balanced ecology and healthy rivers and streams may be regulations for the application of fill material, land use, non-point source pollution and other local issues. These are not issues addressed under the Clean Water Act. These issues need to be consistently and properly addressed on the state and local level. Something that is often hard to do. The Clean Water Act may be  the wrong tool for a good cause. Congress may need to act to create the basic framework for laws to protect the sustainability of our water resources for our future. It is not the court’s job nor the agency’s job to create law.