Waters of the United States

Michele BuddemeyerEnvironmental Science 432 – Introduction to the Clean Water Act

Towson University | Independent Study

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Prior to the Clean Water Act of 1972 the United States was rife with water quality issues

such as the oil files on the Cuyahoga River in Ohio, raw sewage dumping in rivers, massive fish

kills, and having unfit water for fishing and swimming (Living, 2012). These situations, along

with inadequate previous provisions such as the Federal Water Quality Act led to the Clean

Water Act with a goal to

within the Clean Water Act lies Section 502 which defines navigable waters as those Waters of

the United States and includes territorial seas. (United, 2016). However, the definition of Waters

of The United States has always been indeterminate leading to a continual need to try to define

the rule as specific as possible to what qualifies as a Waters of The United States. The 1986/1988

Regulatory Definition is much more specific, includes wetlands and the like but does not include

prior converted cropland (US, 2017).

The overall objective of the Waters of The United States rule is to define the Waters of

The United States that fall under the Clean Water Act to restore and maintain the chemical,

physical, and biological integrity of the Nation's waters, and originally eliminating the discharge

of pollutants into the navigable waters by 1985 as per Section 101 (a) (United, 2017). The Clean

Water Act is important in maintaining the United States citizen’s confidence in interstate water

quality through the interconnectedness of the United States Environmental Protection Agency

“restore and maintain the chemical, physical, and biological integrity of the Nation's waters… and to

improve water quality to a level to which it provides for the protection and propagation of fish, shellfish

and wildlife and provides for recreation in and on the water.”

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standards and Federal law that lead to implementation by the states (Vimeo, 2011). The Waters

of The United States rule is discussed in Section 502 of the Clean Water Act and Code of Federal

Regulations (CFR); 40 CFR 230.3; 33 C.F.R. 328.3(a)(1); 33 C.F.R. 329; and 40 C.F.R. 230.3(s)

(1) of the (United, 2016) (United, n.d.). Also stated is that for guidance (a)(1) waters are

traditional navigable waters and include all navigable Waters of The United States in Part 329

(United, n.d.).

Within the Clean Water Act the Waters of The United States falls under the

determination of the Section 404 Program and the Application of the Exemptions Under Section

404(F) with administration of regulation and guidance performed by The United States

Environmental Protection Agency and Department of the Army Corps of Engineers on the

majority of the geographic jurisdictional determinations and exemptions and the oversight

established by the Environmental Protection Agency (US, 2016). In adherence to the "Federal

Manual for Identifying and Delineating Jurisdictional Wetlands" and Environmental Protection

Agency guidance to clarify their stance on geographic jurisdiction and exemptions the

Environmental Protection Agency is considered the lead agency on final decision making (US,

2016). The controversy that is associated with the Waters of The United States rule stems from

the U.S. Congress never defining Waters of The United States (Environmental, 2017). Definition

was left to the Environmental Protection Agency which resulted in abstract and subjective

wording, such as significant nexus, to add controversy to the Waters of The United States rule;

and agreeable definitions with terminology clarifications being sought in its history through the

Supreme Court of the United States as covered by the Clean Water Act and the 2015 Clean

Water Rule (Environmental, 2017). Another conflict involves the definition of Waters of The

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United States as it pertains to The NPDES program and the discharge of point source pollutants

and the need for permits (Environmental, 2017).

In addition to the Waters of The United States definition controversy exists the negative

economic consequences along with the question as to whether it violates the commerce clause

(Worth, 2016). Those most concerned over and affected by this rule include private land owners

claiming negative affects brought about by the Waters of The United States rule, as have the

Small Business Association (SBA), the energy and power sector, farming or business practices

near water, the National Association of Homebuilders (“NAHB”), the Kansas Livestock

Association (“KLA”), and the National Cattlemen’s Beef Association (“NCBA”) to name a few

(Worth, 2016). These controversies led to the three key Supreme Court rulings involving the

Waters of The United States rule: The US v. Riverside Bayview Homes; The Solid Waste

Agency of Northern Cook County v. US Army Corps of Engineers; and Rapanos etal v. US.

The US v. Riverside Bayview Homes Supreme Court of the United States case in 1985

arose from the Army Corps of Engineers taking Riverside Bayview to district court for filling on

their property without a permit (UNITED, 1985). The developer, Riverside Bayview Homes Inc.,

had started to add fill materials near the shores of Lake St. Clair, Michigan to which the court

deemed the property subject to government control because

"those areas that are inundated or saturated by surface or ground water at a frequency and duration

sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions,"

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and it was a freshwater wetland with the property adjacent to a body of navigable water

(UNITED, 1985). However, after being heard at the Court of Appeals level the ruling was

reversed due to Army Corps of Engineers’ overreach on the term Waters of The United States

and falling subject to violation of the Fifth Amendment by way of taking without just

compensation (UNITED, 1985). Finally, the case made its way to the Supreme Court where it

was found unanimously that the Army Corps of Engineers did have the authority for taking as

the property was an intrastate wetland per the definition set forth by the Waters of The United

States rule and that Army Corps Of Engineers’ interpretation was on point (UNITED, 1985).

Following the US v. Riverside Bayview Homes decision came the Migratory Bird Rule of 1986

in which the Army Corps of Engineers declared that in accordance with Section 404 (a), Waters

of The United States extend to intrastate waters where migratory birds falling within the

Migratory Bird Treaty Act find the provision of habitat or the water to irrigate crops is sold in

interstate commerce (SOLID, 2001).

Just as the Clean Water Act’s Section 404(a) regulates the discharge of dredged or fill

material into navigable waters as discussed in the first Supreme Court of the United States

decision above, in the Solid Waste Agency of Northern Cook County (SWANCC) v. US Army

Corps of Engineers, No. 99-1178 the Supreme Court of the United States deemed it ill-fitting for

Army Corps of Engineers to determine an isolated from the Waters of The United States and

abandoned, intrastate gravel pit a jurisdictional wetland under the Migratory Bird Rule (Federal,

2011). A group of twenty-three Chicago cities and villages filed for a 404 (a) permit as they were

filling pits with gravel that were destined to be a solid waste disposal site (Federal, 2011). These

pits were found to hold a pond so the Army Corps of Engineers claimed it did not fit the criteria

for their jurisdiction (Federal, 2011). However, the Army Corps of Engineers later changed their

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mind and withheld the grant of a permit because the pits were a habitat spot for multiple

migratory birds (Federal, 2011). According to the Memorandum to the U.S. Environmental

Protection Agency Department of Transportation Federal Highway Administration in 2001, The

Supreme Court of the United States found that in Solid Waste Agency of Northern Cook County

case the Army Corps of Engineers’ overstep of its interpretation of the Clean Water Act to

include the gravel pit pond in lieu of being a migratory bird habitat was impermissible.

Lastly, the Supreme Court of the United States case Rapanos etal v. US in 2006

combined Rapanos’s case, the first big environmental case heard by the new Chief Justice, John

Roberts and Associate Justice, Samuel Alito, for the regulation of isolated wetlands and another

Michigan developer, June Carabell, for questionable Federal jurisdiction applications of wetlands

adjacent to tributary Waters of The United States although isolated (JOHN, 2006). Rapanos

filled 22 acres of wetland that he owned with sand in the late 1980s for beginning construction of

a mall, without filing for a permit arguing that the land was not a wetland because it was up to 20

miles from a navigable waterway (JOHN, 2006). Carabell took the Army Corps of Engineers to

Federal District Court and the Sixth Circuit Court of appeals over being denied a permit by the

Army Corps of Engineers to construct condominiums on wetlands covering 19 acres and then

later appealed to the Supreme Court of the United States; both in Michigan (John, 2006). The

problem lies within the overly broad interpretation of what a navigable waterway is by the

Environmental Protection Agency (JOHN, 2006). This indecision resulted in the two-felony

conviction of Rapanos, guilty of filling wetlands, with an ultimate price of three years of

probation and $5,000 in fines, later faced up to 63 months in prison, and settled with a payment

of one million dollars to the Environmental Protection Agency with not admitting of any wrong

doing (JOHN, 2006). He had appealed his case and several million dollars in fines to the

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Supreme Court of the United States with the Justices ultimately not being able to complete with a

majority decision (JOHN, 2006). There were five opinions issued, one plurality; two concurring;

and two dissenting with no single opinion commanding (US, 2007).

The definition of Waters of The United States continued to be the reigning factor of

indecision. Justice Scalia referred to where the Clean Water Act States it shall protect the

primary responsibilities and rights of the States and relied on Webster’s Dictionary’s definition

of waters as only including relatively permanent, standing or continuously flowing bodies of

water while Justice Kennedy argued that a nexus exists because a wetland or waterbody falls

within the Clean Water Act’s jurisdiction because he believed it affected the physical, biological,

and chemical integrity of navigable waterways downstream (JOHN, 2006). The Supreme Court

of the United States decision led to four voting to affirm while four voting to vacate with remand

for further proceedings, although the remand fell under both a new continuous surface water

connection and under Justice Kennedy’s significant nexus standards (JOHN, 2006). A plurality

opinion was written by Justice Antonin Scalia against the Army Corps of Engineers’ vast

overstepping of the federal regulation, immense cost for those applying to backfill their own

land, and subjective factors Army Corps of Engineers uses to incite their jurisdiction over the

Waters of The United States definition (JOHN, 2006). One major objection was their Waters of

The United States expansion to include swampy land which would give them a hand over half of

Alaska not to mention a huge swath of land in the lower forty-eight; leading to him calling for

the investigation of the use of varying standards throughout different Army Corps of Engineers

offices by the Government Accountability Office (JOHN, 2006).

No one opinion held a majority and those opinions pitted the denial of silt, outwash, and

like definitions holding the ability to wash downstream and negatively affect other navigable

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Waters of The United States, this is a point of contention because discharge of any pollutant

from any point source into Waters of The United States deems the necessity of a NPDES permit,

the disagreement to whether wet fields could be sensitive water system habitats like what

founded the Migratory Bird Act of 1986, Army Corps Of Engineers’ reasonable interpretation

over defining terms and reach, and the concern that Army Corps Of Engineers stretched its

authority under the Clean Water Act in relation to interstate commerce power which should

result in Army Corps Of Engineers finally publishing regulations amendments as was expected

after the Solid Waste Agency of Northern Cook County decision (JOHN, 2006). It is doubtful

that the Supreme Court of the United States will clarify the decision in question in the

foreseeable future even after the Rapanos case has since been presented to seven Federal

Appellate Courts with no resolve and the Supreme Court of the United States denying writ of

certiorari petitions regarding the split decision in six (JOHN, 2006).

According to the Environmental Protection Agency’s Water News Release in March of

2014, the Environmental Protection Agency and Army Corps of Engineers were going to hold a

90-day public comment and input gathering initiative to assist in a proposed a rule that would

bring clarity to the Clean Water Act’s definition of forming streams and wetlands covered upland

and affecting downstream waters of the United States jurisdiction. During the Environmental

Protection Agency’s 2014 News Releases Jo-Ellen Darcy, Assistance Secretary of the Army,

stated rulemaking will,

“better protect our aquatic resources, by strengthening the consistency, predictability, and transparency of our jurisdictional determinations. The rule's clarifications will result in a better public service nationwide."

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Approximately a third of Americans rely on drinking water from public systems that are

directly affected by downstream waters that have upstream streams that flow only seasonally or

after rain (EPA, 2014). The Environmental Protection Agency and Army Corps of Engineers will

be working jointly with the U.S. Environmental Protection Agency and Department of

Agriculture to exempt some conservation methods from the dredge and fill permits required

under Section 404 of the Clean Water Act and to assist states and tribes regain their ability to

protect waters not covered under the Clean Water Act; subject to a final completed scientific

assessment (EPA, 2014). The Environmental Protection Agency and Army Corps of Engineers

rule was to be enforceable on August 28, 2015, after the finalization of the 75-page regulation

completed on June 29, 2015 to clarify and define the Waters of The United States (Petitioners,

2015) (The, 2017). The Waters of The United States remained a controversy after thirteen states

sued, and later U.S. Chief District Judge Ralph R. Erickson blocked the regulation in those

affected states by injunction on August 27, 2015. Later that year, the Environmental Protection

Agency/Army Corps of Engineers’ rule was stayed throughout the nation (Newsbank, 2017).

As per House Science, Space, and Technology Committee Chairman Smith’s Statement

regarding the ruling to halt Waters of The United States in October 2015, the out of control

Environmental Protection Agency would have been able to oversee and regulate almost every

water body in the United States if the rule was not stopped (House, 2015). Additionally, the term

“navigable waters of the United States” remains a source of contention because it robs persons of

time and money by as some would say, including everything that could have water present at

some point in time each year. Are puddles, roadside ditches, swales, snow melts, dry creek beds,

ephemeral drainage ditches, man-made tile lines and irrigation ponds to be considered water of

the United States or should they be (Iowa, 2017) (United, 2016)? How much is too much time

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and money spent and what is in the best interest to fulfilling the goals of the Clean Water Act

without hindering economic growth, using unclear regulations, and still decrease pollution

entering waters (Marsh, 2017).

Some of the controversies to arise from developing the 2015 Obama Administration

Waters of The United States rule were immediate, including what many considered and a shady

process of pushing the regulations through without the proper Environmental Protection Agency

preparatory steps and without taking family farmers interests or thoughts into consideration

(Iowa, 2017). Instead of clarifying the definition of the Waters of The United States many argue

that it instead overreached its mandated allowances in authority by including too much an in turn

made the definition more unclear. Iowa farmers argued that having less definition made it more

difficult for them to carry out rules imposed by the Waters of The United States rule and took

away their voice (Iowa, 2017). Ultimately, people feel as though the Environmental Protection

Agency under the Obama administration ignored their state’s needs of states instead of working

with them and instead of trying to interpret what Waters of The United States means under the

Clean Water Act they decided to remake it consistent with what sided with environmentalists and

lobbyists wanted, such as puddles; even if not purposely (Iowa, 2017).

Currently, States and federal regulators are making Waters of The United States

determinations by what was put into effect in 1986 and 1988 consistent with the Supreme Court

decisions and guidance documents according to 40 CFR 230.3(s) (US, 2017). From the

Environmental Protection Agency Waters of the United States Rulemaking page they are defined

as follows:

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1. All waters which are currently used, or were used in the past, or may be susceptible to

use in interstate or foreign commerce, including all waters which are subject to the ebb

and flow of the tide;

2. All interstate waters including interstate wetlands;

3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams),

mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or

natural ponds, the use, degradation or destruction of which could affect interstate or

foreign commerce including any such waters:

1. Which are or could be used by interstate or foreign travelers for recreational or

other purposes; or

2. (From which fish or shellfish are or could be taken and sold in interstate or

foreign commerce; or

3. Which are used or could be used for industrial purposes by industries in

interstate commerce;

4. All impoundments of waters otherwise defined as waters of the United States under this

definition;

5. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;

6. The territorial sea;

7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified

in paragraphs (s)(1) through (6) of this section; waste treatment systems, including

treatment ponds or lagoons designed to meet the requirements of Clean Water Act (other

than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this

definition) are not waters of the United States.

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Waters of the United States do not include prior converted cropland. Notwithstanding the

determination of an area’s status as prior converted cropland by any other federal agency, for

the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction

remains with Environmental Protection Agency (US, 2017).

The current status of the 2015 Waters of The United States rule is that President Trumps’

Executive Order in February 2017 instructs the Environmental Protection Agency Director Scott

Pruitt to review the hotly contested federal overstep of the rule on the basis that it is

economically damaging to businesses in its statement of river, streams, and wetlands that they

can regulate (Marsh, 2017). If that instance is found to be true the Environmental Protection

Agency will have to draft another rule to put in place of the current one (Newsy, 2017).

Currently, the Supreme Court of the United States is addressing whether the rules put in place

during former President Obama’s administration were legal, thus possibly adding years to the

timeframe of when a new rule by Pruitt could be designated with President Trump being firmly

committed to getting rid of the Waters of The United States rule (Newsy, 2017) (Iowa, 2017). As

for the future of defining Waters of The United States, on June 27, 2017 the Environmental

Protection Agency Administrator, Scott Pruitt, and the senior official acting as Assistant

Secretary of the Army for Civil Works, Douglas Lamont, signed a proposed rule for Waters of

The United States recodification with a public comment session will be open in the Federal

Register until August 28, 2017 (EPA, 2017). In early August 2017 in speaking to the

Iowa Farm Bureau Federation, Pruitt vowed to rescind the current Waters of

The United States rule and replace it with a more modest version that reads

clearer, aids farmers, and follows in congressional wisdom using a two-phase

plan that includes the current public comment and petition to repeal process

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in effect and then expedient development of a better Waters of The United

States rule in place by 2018’s first quarter (Iowa, 2017).

The Clean Water Act is important and in the last forty years it has reduced the number of lakes,

rivers and coastal waters that were unsafe for fishing and swimming by fifty percent but with a

third of the waters of the United States still not meeting current standards there is still much

work that remains to be done (EPA, 2014). Over the years the Clean Water Act has resulted in

many years of environmental improvements but it has done so using a cooperative federalism

approach where each government; federal, state, and local work together and cooperate to

promote water protection services (Newsbank, 2017). The future of the Waters of The United

States rule will hopefully improve water conditions but as long as both sides have the

opportunity to profit or are representative that parties that lose economically there is a high

chance that the debate of defining Waters of The United States and navigable waters will

continue to rage on.

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Works Cited

Environmental Protection Agency. (2017, August 16). Frequently Asked Questions. Retrieved

August 17, 2017, from https://www.Environmental Protection Agency.gov/Waters of

the United States-rule/frequently-asked-questions#confusion

ENVIRONMENTAL PROTECTION AGENCY. (2017, July 27). Proposed Rule: Definition of

"Waters of the United States" - Recodification of Pre-existing Rules. Retrieved August

20, 2017, from https://www.Environmental Protection Agency.gov/Waters of the United

States-rule/proposed-rule-definition-waters-united-states-recodification-pre-existing-rules

Environmental Protection Agency and Army Corps of Engineers Clarify Protection for

Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean

Water Act Expanded by Proposal . (2014, March 25). Retrieved August 20, 2017, from

https://yosemite.EPA.gov/opa/admpress.nsf/3881d73f4d4aaa0b85257359003f5348/

ae90dedd9595a02485257ca600557e30

Federal Highway Administration. (2011, February 8). Memorandum. Retrieved August 16, 2017,

from https://www.environment.fhwa.dot.gov/ecosystems/laws_swancclg.asp

JOHN A. RAPANOS, ET UX., ET AL., PETITIONERS v. UNITED STATES, No. 04–1034

and 04–1384 slip op. at 1 (June 19, 2006).

House Committee on Science, Space, and Technology. (2015, October 09). Smith Statement on

Ruling to Halt WOTUS. Retrieved August 20, 2017, from

https://science.house.gov/news/press-releases/smith-statement-ruling-halt-Waters of the

United States Living on Earth / World Media Foundation / Public Radio International.

(2012, December 27). A Look Back at the Birth of the Clean Water Act. Retrieved August

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16, 2017, from http://www.loe.org/shows/segments.html?programID=12-P13-

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Iowa Farm Bureau. (2017, August 14). EPA leader pledges to rescind and replace WATERS OF

THE UNITED STATES rule. Retrieved August 20, 2017, from

https://www.iowafarmbureau.com/Article/epa-leader-pledges-to-rescind-and-

replace-wotus-rule

Marsh, R., & Diamond, J. (2017, February 28). Trump to sign order reviewing EPA water rule.

Retrieved August 16, 2017, from http://www.cnn.com/2017/02/28/politics/donald-trump-

water-epa/

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p=AWNB

Newsy. (2017, February 28). Trump Takes Aim At EPA Water Regulations With New Executive

Order [Video]. Cincinnati: E. W. Scripps Company.

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SIXTH CIRCUIT October 9, 2015).

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY v. UNITED STATES ARMY

CORPS OF ENGINEERS et al. (Court of Appeals January 9, 2001), 2000 United States

Environmental Protection Agency 99–1178, at 159.

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The Daily Journal of the United States Government. (2015, June 29). Clean Water Rule:

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definition-of-waters-of-the-united-states

United States Environmental Protection Agency. (2017, January 09). Program Overview:

Impaired Waters and TMDLs. Retrieved August 16, 2017, from

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waters-and-tmdls

United States Environmental Protection Agency. (2016, September 15). Clean Water Act,

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act-section-502-general-definitions

United States Environmental Protection Agency. (n.d.). Legal Definition of “Traditional

Navigable Waters” (pp. 1-5). Retrieved August 17, 2017, from

https://www.epa.gov/sites/production/files/2017-05/documents/app_d_traditional_na

vigable_waters.pdf

UNITED STATES V. RIVERSIDE BAYVIEW HOMES INC, No. 84-701 (December 4, 1985).

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states

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US Environmental Protection Agency. (2016, September 15). Memorandum of Agreement:

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section-404f-clean-water-act

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[Video]. Arlington: Center for Climate and Energy Solutions.

Worth, S. (2016). Water, Water, Everywhere, And Plenty Of Drops To Regulate: Why The

Newly Published Waters of the United States Rule Does Not Violate The Commerce Clause.

Boston College Environmental Affairs Law Review, 43(2), 605-636